Labor Attorney Breaks Down ERGs and Unions

Hi all,

Finally had my call with Phil Wilson (legal expert on ERGs and unions) and the recording is live on YouTube.

Quick learnings:

1. ERGs In Some Cases Can Be Considered Unions.

If an ERG is structured to represent employee views, propose workplace changes (especially around wages, hours, or working conditions), and receives employer funding/support it can be seen as an employer-dominated union under the National Labor Relations Act. It’s illegal under Section 8(a)(2) of the National Labor Relations Act (NLRA).

2. “Advocacy” Is a Legal Red Flag.

Telling ERG leaders to “advocate on behalf of their community” might feel empowering, but it positions the ERG as a representative body which crosses into union territory. Program strategy and role descriptions should focus on community-building and education, not representation or negotiation.

3. Policy Proposals Can Trigger Legal Issues.

When ERGs collect member feedback and present formal proposals to HR (e.g., new benefits, compensation changes), it mimics collective bargaining. Even if intentions are good, this can be a legal misstep if the group is not a recognized union.

4. Focus Groups & Listening Sessions Are Safer …With Boundaries.

It’s okay to listen to individuals in ERGs about workplace experiences. But once the group is positioned as the voice of a population, it becomes risky. Keep listening activities inclusive, optional, and clearly framed as insight gathering—not negotiation.

5. Documentation Can Make or Break Compliance.

The way you document ERG structures (charters, role guides, engagement cadences) can either protect your program or expose it. Watch for language that suggests formal representation, required participation, or strategic influence over business operations tied to protected employment areas.

This conversation was the final piece for me before I debut my latest hot take. More to come next week.

Maceo