What ERG Program Managers Need to Know About the NLRB

Disclaimer: I am not a lawyer, and nothing in this presentation should be taken as legal advice. The information provided here is for general informational purposes only. Please consult with qualified legal counsel regarding your specific situation.

Employee Resource Groups have become an essential tool for fostering workplace inclusion, community, and engagement. But as companies integrate ERGs more deeply into their operations, they may unintentionally cross legal boundaries—especially when it comes to the National Labor Relations Board (NLRB) and NLRA Section 8(a)(2).

If your ERG is engaging in workplace policy discussions, advocating for benefits, or being positioned as a representative body for employees, you need to understand the risks. Otherwise, your ERG could be classified as an employer-dominated union—an illegal practice under federal labor law.

What Is the NLRB and Why Does It Matter for ERGs?

The National Labor Relations Board (NLRB) is a federal agency that enforces the National Labor Relations Act (NLRA). The NLRB’s primary role is to protect workers’ rights to organize, form unions, and engage in collective bargaining. However, it also investigates and penalizes employers who interfere with or dominate employee-led groups—which is where ERGs come into play.

NLRA Section 8(a)(2) – The Rule That Puts ERGs at Risk

According to NLRA Section 8(a)(2), it is illegal for an employer to “dominate or interfere with the formation or administration of any labor organization”. This means that if a company funds, controls, or negotiates directly with an ERG about workplace policies, it could be found guilty of running an employer-dominated union.

How ERGs Could Cross the Line

Your ERG does not have to be a traditional union to get caught in NLRB scrutiny. If your ERG does any of the following, it may be seen as engaging in prohibited labor activities:

• ✅ Negotiating or advocating for workplace policies (e.g., pay equity, parental leave, benefits)

• ✅ Submitting proposals that management directly considers for implementation

• ✅ Discussing employee grievances or complaints on behalf of members

• ✅ Having ERG leaders positioned as “representatives” of their community

Many companies unknowingly violate Section 8(a)(2) by allowing ERGs to serve as internal consultants for workplace changes. While this may seem harmless, the moment an ERG starts engaging in workplace negotiations, it risks becoming classified as a labor organization, which is illegal for a company to fund and oversee.

This isn’t just about ERGs—any employee group, like a safety council, culture committee, or even an informal team, could break the rules if they start pushing for workplace policy changes. It’s not about what the group meant to do—it’s about how it functions and how the company treats it.

How to Keep Your ERG Safe and Compliant

If you’re leading an ERG program, here are some immediate actions you should take to protect both your company and your ERGs:

✅ 1. Ensure ERGs Are Framed as Employee Engagement Programs

The safest positioning for ERGs is as community-building and culture-driving groups within a company. They should focus on niche engagement, networking, career development, and allyship—not workplace policy advocacy.

What’s Safe:

✔ ERGs hosting events, mentorship programs, and networking opportunities

✔ ERGs supporting employee engagement and belonging

✔ ERGs providing leadership development opportunities

What’s Risky:

❌ ERGs engaging in workplace policy advocacy or grievances

❌ ERGs negotiating with leadership about compensation, promotions, or benefits

✅ 2. Stop Referring to ERG Leaders as “Representatives”

One critical mistake many companies make is referring to ERG leaders as “representatives” of their communities. This legally positions them like union leaders and could make the ERG appear as an advocacy body rather than a voluntary group.

Fix it:

✔ ERG leaders represent themselves, not the interests of an entire demographic.

✔ Avoid terms like “ERG representatives” or “ERG advocates.”

✅ 3. Direct Workplace Policy Requests to HR

If an ERG has concerns about company policies, do not submit them directly to leadership. Instead, ERGs should redirect all workplace concerns to HR and ensure that policy-related discussions happen at the individual level—not through ERGs.

Better approach:

✔ ERG members can provide individual feedback to HR as employees.

✔ If trends emerge, HR—not the ERG—should handle workplace policy discussions.

✅ 4. Document ERG Governance Clearly

Companies should create clear documentation stating that:

✔ ERGs do not engage in collective bargaining or workplace negotiations.

✔ ERGs exist to support culture and engagement—not to advocate for policy changes.

✔ Any ERG-led concerns about workplace policies must be directed to HR.

For years, many ERG program managers have unknowingly allowed ERGs to engage in union-like activities without realizing the legal risks. But with increasing scrutiny from the NLRB, it’s critical to ensure that ERGs remain within compliance.

I know this might feel overwhelming, but awareness is the first step to protecting your ERG program. ERGs thrive when they focus on community, culture, and engagement—not workplace negotiations. This is why I’ve been emphasizing the need for ERGs to be positioned as niche communities within companies rather than policy-driving advocacy groups.

By keeping ERGs centered on employee engagement rather than workplace policy changes, companies can ensure long-term sustainability without crossing legal boundaries. If you want to future-proof your ERG program, now is the time to review your documentation, clarify ERG roles, and ensure that your groups operate within a safe legal framework.

Stay tuned - I’ll be sharing more legal truth bombs next week.

The ERG Homegirl