Is Your ERG Program Operating Like an Illegal Union?

Over the past two months, I’ve been diving deep into unions, labor laws, and (new terminology alert) the National Labor Relations Board (NLRB)—and ERG Program Managers need to hear this.

I recently learned about NLRA Section 8(a)(2), which prohibits employer-dominated labor organizations. This means that if an ERG starts negotiating workplace policies, pay, benefits, or grievances, it could legally be considered an employer-dominated union. And yes, this is illegal under federal labor law.

This is exactly why I’ve been tripling down on ERGs centering themselves as communities within companies—culture builders and culture drivers through niche community engagement. If ERGs are truly framed as employee engagement initiatives, they are safe. But the moment they step outside of those lines, the legal risk becomes real.

And this isn’t just my opinion—this came straight from a union lawyer himself. He explicitly stated that ERGs focused on community-building and engagement programming are legally safe. Outside of that? It gets murky fast.

This is why I’ve always been hesitant about ERGs engaging in internal and external consulting—especially when it comes to ERGs impacting “commerce.” 

At the end of the day, I love community, and I know its value. But more than that, I know it makes no sense to put ERGs—and companies—at legal risk just for the sake of what we “want” to do. ERGs should be driving engagement, fostering belonging, and strengthening company culture—not stepping into spaces that could turn them into de facto labor organizations.

And before anyone asks—yes, there have been companies that have gotten in trouble over this. This isn’t a hypothetical concern. These aren’t just my words—this is coming directly from the labor relations expert I’ll be bringing in for a legal session soon.

So, here’s one key tip I’ll share today (I’ll drop a bigger tip tomorrow at the Out of Office ERG Summit):

🔹 Check your documentation immediately. If ERG leaders are labeled anywhere as “representatives” of their community, change that language now. ERG leaders should only be representing themselves and sharing their personal perspectives. This kind of wording matters—documentation can make or break whether your ERG is viewed as an employee engagement initiative or something legally riskier. Again, this is the legal language that an actual lawyer gave me to pass on.

I’ll be recording my session and will share it with ERG Champs so you can learn more. ERGs are already under scrutiny, and companies are making big shifts in how they manage them. Wouldn’t it be better to address these risks now rather than waiting for a legal challenge?

The ERG Homegirl

P.S. If you’re free in 20 minutes, I’ll be live on Epoch’s Webinar giving some hot takes.