“Concerted Activity” Protection Provides Leverage

June 1, 2021
Barbara Gardner

Content Highlights

Have you discussed working conditions, wages, or benefits with another employee who shares the same concerns? Discussing employment conditions with other employees is called “concerted activity,” which is protected against employer retaliation.

At Gardner Employment Law, we offer expert advice on how to improve your work environment, especially if you’re not the only one facing the same problems. Feel free to give us a call if you have questions about issues at work.

What is Concerted Activity?

Concerted activity happens when two or more employees express concerns for their mutual aid or protection regarding the terms and conditions of employment. Employees who engage in discussions about problems at work are protected by federal law that prohibits employer retaliation. Valid concerns may involve unsafe conditions, such as being forced to work without protection from the coronavirus, higher pay, scheduling, better benefits, personal leave, and much more.

What Law Protects Concerted Activity at Work?

The National Labor Relations Act (NLRA) is the federal law that protects the rights of private sector employees to organize around working conditions. Section 7 of the NLRA gives workers the right to engage in “protected concerted activity” free from employer retaliation. The National Labor Relations Board (NLRB), a government agency, emphasizes, “Your employer cannot discharge, discipline, or threaten you for, or coercively question you about this protected concerted activity.”

Does Concerted Activity Provide Leverage?

Concerted activity gives you leverage in approaching your employer to discuss a needed change at work. It provides not only the legal protection of the NLRA, but “there’s strength in numbers.” You have the right to speak on behalf of other employees, as well as yourself, about the terms and conditions of your employment.

If your employer will not listen or if no solution is found, you have the right to file a complaint with the NLRB. This is not a lawsuit, but it could trigger an investigation and action against the employer by the NLRB. If the local labor board believes that there is some merit to the complaint, the board will investigate. Individual employees who have a mutual concern as a group have the same right in this regard as a union.

I represented a high level client who had an employment agreement with the company. Others at his level had the same basic contract. Over time one particular contract provision had caused concern among my client’s group of managers, which they had discussed. Since the provision was the same in all of their contracts, through their discussions the managers discovered that the employer was violating this particular provision. None of the other managers had the courage to approach management about the concern. When my client raised the issue with upper management, his contract was terminated. He came to me for help. During the negotiations, I raised the NLRA principle of “concerted activity,” pointing out the ongoing problem which the managers had discussed. This factor turned the tide, and eventually my client was reinstated.

Is Social Media Considered Protected Concerted Activity?

Discourse on social media about employment concerns also is protected concerted activity, just as though you were having the discussions at work. You have the right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media. Of course, you must be truthful and based on actual facts. You cannot permit your “concerns” to turn into unfounded mud-slinging against your employer.

A recent 2020 article in Forbes , “Collective Action on Social Media,” discusses the NLRA and provides examples of what constitutes protected concerted activity on social media. These examples include:

Protected under the NLRA:	Not Protected by the NLRA:
A group of employees posting comments on Facebook about a coworker who criticized their performance.	An employee’s Facebook posting making fun of a workplace accident.
An employee “liking” another employee’s Facebook post that complained about an employer improperly filling out a tax form that resulted in an unexpected tax bill.	An employee’s off-hand complaint about bad tips made in front of coworkers, even though both the employee and the coworkers all refused to take on a particular job because of the belief that they wouldn’t receive any tips. However, the employee admitted his complaint was not intended to induce collective action.
Right before a union election, an employee who felt abused and disrespected by his manager made a Facebook post insulting his manager and encouraging others to vote yes in the upcoming union election. This post attacked not only the manager, but the manager’s mother and family and dropped a few f-bombs along the way.	An employee’s complaints about tipping made on Facebook that were directed toward a relative and not a fellow employee and were not made on behalf of fellow workers.

You might wonder how profanity is protected. Employees’ actions may not be protected if they are extreme, but the NLRB does not parse specific words but investigates all of the circumstances. The Board has allowed profane statements to be protected. The NLRB determines whether the employer’s action in response to the employees’ discussion has a chilling effect or is taken to interfere with the employees’ right to discuss working conditions. Does a supervisor merely looking at a public Facebook post about the company qualify as retaliation? Probably not. But if an employer spies on an employee, that could have a chilling effect.

Must Employees Be Members of a Union to Be Protected for Concerted Activity?

You are not required to join a union to come under the NLRA protection for concerted activity. This legal principle of concerted activity allows all employees to freely discuss matters of mutual concern among themselves without suffering repercussions by management simply because of the discussion.

Under state law, there is a concept known as “right to work,” which means that an employee has a right to work as an individual employee without being forced to join a union. That concept frequently is confused with “employment at will.” As we discussed in a previous blog post, “Wrongful Termination or At-Will,” based on the doctrine of “employment at will” an employer can terminate you at any time for any reason, so long as the termination itself is not violating a law.

Get an Expert on Your Side

Contacting an experienced employment lawyer can help you make the best decisions at your workplace. Contact Gardner Employment Law today.