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NLRA Protected Activity in the Non-Union Workforce

The National Labor Relations Act (NLRA) creates the framework for how employers and unions interact. What many employees don’t know is that the NLRA also protects the majority of non-union workers as well. Under the NLRA, employees – even those in a non-union workplace – are protected against employer retaliation for protected workplace activities. This means that if a group of employees make job-related complaints (e.g. workplace conditions, the terms of their employment, supervisor misconduct, safety issues, or other job related matters) and then are retaliated against for doing so, they may be able to seek redress under the NLRA.

Section 7 of the NLRA protects the right to engage in “concerted activities” for “mutual aid or protection.” In the union setting, this means that employers cannot fire employees for trying to organize or establish a union. While Section 7 may not seem to protect a wide variety of workplace activities, in fact, protected activities under Section 7 go well beyond unions.

Concerted activities protected by Section 7 include whenever employees discuss their employment situation, or act together to improve their situation. This includes, among many other scenarios:

• Employees discussing together, in person or over Facebook or other social media, complaints about their employer;

• Employees communicating about payment or salary with coworkers;

• Employees speaking up in group meetings about their working conditions, or the actions of management;

• Employees sharing details of their own harassment complaints;

• Employees writing letters of complaint to their employers;

• Employees posting videos online where they complain about working conditions;

• Employees walking off the job to protest working conditions;

Usually, protected concerted activities involve two or more employees acting together. The actions of a single employee may be protected, however, if he or she consults with other employees before acting. For example, the National Labor Relations Board (NLRB) recently found that a nurse, who was fired for sending an email to her supervisor complaining about workplace conditions – specifically, complaining about the hospital’s procedures for evaluating nursing fellows, was illegally terminated for protected concerted activity, because she drafted the email with help of four other nurses, and the email was signed by the four other nurses as well.

The NLRB has been aggressively expanding the protections of Section 7 to non-union workers, and has been remarkably proactive in addressing the myriad problems created by social media. Considering the nature of social media, most activity between coworkers on the internet could be considered “concerted activity.” For instance, the NLRB has held that employees conversing with one another on Facebook about complaints regarding their employer are engaged in protected activity.

In addition to prohibiting employer action against employees based on protected activities, the NLRA also governs workplace rules and policies. This means that employers are not allowed to maintain a rule or policy that would curtail a Section 7 protected activity. In other words, banning one of the above activities would be a violation of the NLRA.

Not all employee actions are protected by the NLRA. If an employee acts alone, without conferring or the support of co-workers, that is not “concerted action” protected by the NRLA, and the employee is not protected from punishment. Additionally, some concerted employee actions are not protected, including falsely disparaging the employer, outrageously disruptive behavior, and some instances of refusing to work.

One final caveat: the recent Supreme Court decision NLRB v. Noel Canning effectively invalidated a number of NLRB decisions from 2012 and 2013. This is the period during which the NLRB most actively applied the NLRA to non-union employees. Although these decisions are no longer law, it is expected that the current NLRB panel will re-adopt many, if not all, of the invalidated decisions.

If you believe that your employer has retaliated against you for your involvement in protected concerted activities, please contact The Harman Firm, LLP.

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