[author: James Hays and Rebecca Hirschklau, with assistance from Summer Associate Molly Masenga]
Last week, in an effort to increase its presence and exposure in the workplace, the National Labor Relations Board (“NLRB”) launched a new webpage to define and provide specific examples of what it considers “concerted activity.” As you may be aware, the National Labor Relations Act’s (“NLRA”) Section 7 provides that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”
The new site, available at http://www.nlrb.gov/concerted-activity, provides several examples of cases brought before the NLRB where an employee’s workplace grievance was found to be “concerted activity” and thus protected by the NLRA. The set of more than a dozen stories designed to provide greater awareness of workers’ rights includes: a paramedic who was fired after posting work-related grievances on Facebook; a customer service representative who lost her job after discussing her wages with a coworker; an engineer at a vegetable packing plant who was fired after reporting safety concerns affecting other employees; and poultry workers who were fired after discussing their grievances with a newspaper reporter.
The new site also highlights three factors the NLRB will focus on in their assessment of whether conduct may be considered protected concerted activity: (1) is the activity concerted, (2) does it seek to benefit other employees, and (3) is it carried out in a way that causes it to lose protection (such as in a reckless, violent, or malicious manner).
While it is important to note that these examples and findings of the NLRB are not precedential nor binding on the Federal courts, they do signal the direction the NLRB is heading on these issues and the type of activities the NLRB is likely to consider to be protected concerted activity. As a result, employers should be mindful that their personnel policies and responses to workplace disputes reflect these recent findings.
