NLRB Expands Reach, Scope of ‘Protected Concerted Activity’

Section 7 of the National Labor Relations Act (NLRA) extends workplace safeguards to employees' "protected concerted activity" in discussing wages, hours and working conditions, a protection that was generally thought to be confined to union organizing. Thus if a worker were fired for discussing a union issue with other employees, that could be considered a violation of the NLRA, and the National Labor Relations Board (NLRB) could seek reversal or restitution.

Under the Obama administration's NLRB, chaired by Wilma Liebman, however, this safeguard has been expanded to protect any group of employees discussing a workplace issue. The trigger to the protection appears to be activated if more than one person speaks out about an issue in a group setting. (Thus a lone complainer would presumably not be protected.)

Illustrating this is a recent decision—Worldmark By Wyndham, 356 NLRB No. 104 (2011)—which held that an employee speaking out about a new dress policy was engaged in "protected concerted activity" because a coworker in the group of three also spoke out on the issue to the manager present.

In Parexel International LLC, 356 NLRB No. 82 (2011), the board extended this same protection to a non-unionized workforce. At issue in this case was an employee who had been discharged for raising questions about a recent round of pay raises that she claimed had discriminated against her. The trigger was the fact that she had discussed the pay raise issue with her coworkers.

“If an employer acts to prevent concerted protected activity–to ‘nip-it–in-the-bud’–that action interferes with and restrains the exercise of Section 7 employee rights,” the NLRB reasoned in finding the discharge illegal.

All this illustrates that businesses are operating in a different labor relations environment than they were a few years ago and should act accordingly.

NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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