Protected Concerted Activity: Navigating the Rise of Employee Activism

From pay transparency to remote work, employees are increasingly vocal about working conditions, both in the office and online. The National Labor Relations Act (NLRA) protects employees, union and non-union alike, when they engage in concerted activity to address terms and conditions of employment. Employers cannot discharge, discipline, or threaten employees for engaging in protected concerted activity. Given the rise of employee activism in the workplace, it is imperative for you to understand when you can and cannot lawfully intervene.

What is Protected Concerted Activity?

Under the NLRA, employees have the right to engage in protected concerted activity (PCA) for mutual aid or protection. When employees act, either together or alone on behalf of other employees, to improve wages, hours, or working conditions, Section 7 of the NLRA protects their activity, regardless of union status. Accordingly, you must first determine whether an employee’s conduct constitutes PCA.

A single employee engages in PCA when they act on behalf of other employees, bring group complaints to the employer’s attention, or seek to induce or prepare for group action. However, employee activity limited to personal work concerns, without a connection to the interest of other employees, is unprotected. For example, an employee demanding a raise for themselves does not engage in PCA, but an employee advocating for raises for their department based on shared belief or concern does.

Examples of PCA include:

• Discussing wages and benefits.
• Refusing to work in unsafe conditions.
• Posting online about common workplace issues.
• Demanding the right to work remotely.
• Voicing a group complaint during a staff meeting.

To avoid an unfair labor practice charge (ULP), you must not interfere with, restrain, or retaliate against employees for engaging in PCA.

When do Employees Lose Protection?

Concerted activity does not give employees free rein or impunity. Although the line between PCA and misconduct can be thin, employees will lose protection where their conduct is egregiously offensive, involves threats or violence, or is intentionally false or malicious. While the National Labor Relations Board (NLRB) provides some leeway for impulsive behaviors, and recent decisions suggest that conduct must be significantly egregious, the NLRB must balance the employee’s right to engaged in PCA with the employer’s right to maintain order and respect in the workplace. Accordingly, employers can enforce a zero-tolerance policy against abusive or discriminatory conduct to comply with applicable state and federal antidiscrimination laws.

Employers can, and should, enforce neutral policies, but must avoid taking adverse actions, such as discharge, discipline, demotion, reduction of hours, or transfer, against employees for engaging in PCA. Otherwise, employers may trigger ULP charges.

Recent Trends

Employee activism, and in turn, the likelihood of employees engaging in PCA, continues to rise, fueled by rising workforce expectations, social movements, and technology that fosters employee collaboration. Recently, ULP charges are on the rise, even among non-unionized employers. The NLRB continues to expand its interpretation of “concerted” and “protected.” As previously discussed, solo employee actions that seek group support or originate from group concerns may be protected, and employees’ online activity is increasingly protected, even when posts are critical or harmful to the employer.

Employer Takeaways

• Train supervisors. Educate supervisors to identify PCA and consult with you before disciplining employees.
• Review policies. Ensure policies do not restrict lawful discussions about wages, benefits, or workplace issues. Similarly, avoid overly broad civility rules that could reasonably chill PCA. Focus policies on prohibiting unlawful harassment and discrimination.
• Be consistent. Apply policies equally and consistently to avoid claims of discrimination or retaliation. Keep clear documentation of your rationale for any disciplinary action.
• Pause before acting. Refrain from taking immediate disciplinary action. First consider whether the conduct relates to working conditions and analyze the impact of the conduct. Address disruptive, intimidating, or harassing behavior.

Bottom Line

As employees continue to become more vocal about working conditions, you should assume their activity may be protected under the NLRA. You should proceed with caution before taking adverse action against an employee and carefully assess whether the conduct relates to employees’ terms and conditions of employment. Applying your policies fairly and thoughtfully handling employee activism can both avoid liability and maintain a positive workplace culture.

This article, slightly modified to note recent updates, was featured online in the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.