In two recent decisions, the National Labor Relations Board (NLRB) adopted a broader test for determining “protected concerted activity” under the National Labor Relations Act (NLRA) and extending those protections to workers advocating for non-employees. Both decisions overturned prior rulings, which had taken more restricted interpretations of Section 7 of the NLRA (Section 7). Many recent NLRB decisions have sought to expand NLRA protections for covered employees. However, in an employer-friendly decision in July 2023, a NLRB administrative law judge confirmed that adverse action against an employee for legitimate business reasons does not violate the NLRA.
Employee Rights Under Section 7 of the NLRA
Under the NLRA, both union and non-union employees have the right to engage in concerted activity whereby two or more employees act for their mutual aid regarding the terms and conditions of their employment. Examples of such concerted activity include:
- talking about wages and benefits;
- petitioning for better hours;
- concerted refusal to work amidst unmitigated workplace safety hazards; and
- talking with the employer, government agency, or the media about problems in the workplace.
Under Section 7, employers may not interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA. For example, the NLRA protects employees from adverse employment action for engaging in protected concerted activity.
Previous Standards for Protected Concerted Activity and Advocacy
In the 2019 case, Alstate Maintenance, the NLRB specifically addressed what actions constitute protected concerted activity. In Alstate Maintenance, the NLRB held that an employee’s complaint in a group setting about not receiving a tip was not a protected activity. The NLRB has reasoned that the concepts of “group setting” and “group complaints” were not the same. Additionally, the NLRB stated that several specific factors would need to be considered. These included whether a statement was made during an employee meeting called by the employer.
Likewise, in the 2019 Amnesty International decision, the NLRB determined that statutory employees seeking pay for their employer’s unpaid interns were not engaged in protected concerted activity. The NLRB reasoned that since the unpaid interns did not qualify as statutory employees under the NLRA, their coworkers had not taken action for “mutual aid and protection.”
Recent Decisions Overturn Previous Rulings
In Miller Plastic Products, the NLRB overruled the 2019 Alstate Maintenance decision and reinstated an earlier 1986 standard. In doing so, the NLRB stated that “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” According to the NLRB, this removes the rigidity and limiting tests under the 2019 standard. Instead, the NLRB acknowledged “spontaneous” concerted activity outside of formal meetings and complaints.
In American Federation for Children, Inc., the NLRB purports to have overruled its 2019 Amnesty International decision. The recent decision’s broader interpretation of “mutual aid and protection” includes advocacy on behalf of non-employees in specific circumstances. Specifically, the NLRA protects concerted activity advocating for non-employees when it might also benefit statutory employees.