Protected Concerted Activity Rights for Employees

Protected concerted activity rights for employees are designed to safeguard their freedom to discuss workplace issues. This includes the right to talk about wages, working conditions, and other job-related topics.

Employees are protected from retaliation if they engage in concerted activity, such as filing a complaint with the NLRB. This protection extends to all employees, regardless of their position or seniority.

Concerted activity can take many forms, including discussions during breaks, at lunch, or after work. It can also involve written communication, such as emails or text messages, as long as the activity is work-related and not solely for personal gain.

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The National Labor Relations Act (NLRA) plays a crucial role in protecting employees who engage in concerted activities. It was passed by Congress in the 1930s to safeguard employees' rights to form or join labor unions, collectively bargain, and engage in activities that benefit multiple employees.

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The NLRA specifically protects employees who take part in concerted activities, including discussing working conditions with other employees. This protection extends to employees who work together to improve wages, working hours, safety, workload, or other work-related issues.

Employers should be aware that the NLRA applies to individual employee activity that may be deemed "concerted" by the National Labor Relations Board (NLRB). This means that employers must thoroughly analyze the facts when making disciplinary decisions for individual misconduct.

The NLRB has expanded the definition of "concerted activity" to include individual actions that may benefit employees. For example, an employee's advocacy on behalf of a nonemployee can be considered protected concerted activity if it can benefit employees.

Here are some key takeaways for employers:

The National Labor Relations Board (NLRB) is an independent federal agency that helps protect employees who want to unionize and improve their working conditions.

The NLRB was formed in the 1930s to help employees conduct union elections, investigate charges against companies, decide cases that are brought to the board, and take businesses to court that do not follow the board's orders.

The NLRB is the agency that helps determine cases of protected concerted activity. It's also the organization that helps employees get compensation when they are found to have been unfairly fired or reprimanded because of a protected concerted activity.

The idea of protected concerted activity is specifically protected by a law called the National Labor Relations Act. Section 7 of the act specifically protects employees who form or try to form labor organizations, employees who collectively bargain, and employees who take part in concerted activities for the benefit of multiple employees.

The NLRB is responsible for enforcing the National Labor Relations Act and ensuring that employees are protected from unfair labor practices.

Your employer is not allowed to terminate you, threaten you, or discipline you for engaging in protected concerted activity. If you have been terminated, suspended, or penalized for engaging in protected concerted activities, the NLRB will try to restore anything that was illegally taken away.

Employers cannot use coercive questioning or interrogation to gain information about the protected concerted activity. However, you are not protected if you do something that is egregiously offensive or knowingly or maliciously false, or if you publicly disparage your employer's services or products without relating your complaint to a labor dispute.

The NLRB takes an expansive view of claims, and in one case, it found that an employee engaged in a protected concerted activity when she spoke to her coworkers about one episode of sexual harassment that was apparently directed only at her.

In employee meetings, certain announcements can trigger concerted activity under the Act. These meetings must be called by the employer to discuss wages, hours, or other employment terms.

The decision announced must affect multiple employees, not just one person. This is a key factor in determining whether the complaint is considered concerted activity.

The employee speaking up must be protesting or complaining about the decision's impact on the workforce, not just their own situation. This shows a collective concern, rather than a personal grievance.

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The meeting must be the first opportunity for employees to address the decision, with no prior discussion among employees. This ensures the complaint is a spontaneous response to the announcement.

In cases where the complaint is deemed concerted activity, the employer may be required to compensate the employee for direct or foreseeable pecuniary harms. This includes reasonable search-for-work and interim employment expenses, regardless of whether they exceed interim earnings.

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Your employer is not allowed to terminate you, threaten you, or discipline you for engaging in protected concerted activity. However, you are not protected if you do something that is egregiously offensive or knowingly or maliciously false.

The NLRB will try to restore anything that was illegally taken away if you have been terminated, suspended, or penalized for engaging in protected concerted activities. This includes actions like termination, suspension, or reduction in pay.

You can take action to improve wages or working conditions with your coworkers, and this is considered a protected concerted activity. For example, you can circulate a petition at work asking for better safety protections.

Your employer cannot use coercive questioning or interrogation to gain information about the protected concerted activity. However, you are not protected if you publicly disparage your employer's services or products without relating your complaint to a labor dispute.

Here are some examples of protected concerted activities:

You're likely covered by the NLRA if you're in the private sector. However, there are some exclusions to be aware of.

People employed by local, state, or federal governments are not covered by the NLRA. This means that government workers are not protected under this law.

Agricultural laborers are also excluded from the NLRA. This includes farmworkers and those who work in related industries.

If you work in the domestic service of a family or person in their home, you're not covered by the NLRA. This could include nannies, housekeepers, and other domestic workers.

Working for a parent or spouse also falls outside of the NLRA's protections. This means that family-owned businesses can have different rules and regulations.

Independent contractors are not considered employees under the NLRA. This means that if you're working as an independent contractor, you're not entitled to the same protections as employees.

The NLRA also excludes people working for employers covered by the Railway Labor Act. This includes workers in the railroad industry.

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Protected concerted activity has a rich history, dating back to the establishment of Section 7 of the Act, which guarantees employees' right to engage in such activities.

The Board established a test for assessing concerted activity in Meyers I, 268 NLRB 492 (1984), which found that employee activity is concerted when it's engaged in with or on the authority of others.

In Meyers II, 281 NLRB 882 (1986), the Board clarified that concerted activity encompasses individual employees seeking to initiate or induce group action, as well as bringing truly group complaints to management's attention.

The definition of concerted activity is not exhaustive and is based on the totality of the evidence.

In 2014, the Board cited Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151, to emphasize that employers can commit an unfair labor practice if they interfere with, restrain, or coerce employees in the exercise of their protected rights.

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Employers can commit an unfair labor practice if they interfere with, restrain, or coerce employees in the exercise of their protected rights.

The Board set out a five-factor test in 2019 to determine whether there is a reasonable inference that an employee was seeking to initiate, induce, or prepare for group action.

The NLRB has been broadening the definition of protected concerted activity, making it more likely for employee conduct to be considered protected. This means employers need to be aware of what is protected to avoid firing or reprimanding employees unlawfully.

The NLRB has found that posting information about wages, working hours, and working conditions on social media is protected as long as fellow employees have access to that information. This is because the National Labor Relations Act protects employees who discuss these issues with fellow employees.

Employers should carefully weigh employment decisions that may involve protected concerted activity, as the NLRB's totality of the circumstances test requires a thorough analysis of the facts. This test can consider whether an employee's actions later sparked group action or complaints, even if they didn't have the intent to induce concerted activity at the time.

The NLRB has accepted more cases involving one person as concerted activity, as long as they were working on behalf of a group of employees. This shift in definition has significant implications for employers and employees alike.

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