A new ruling from the National Labor Relations Board (NLRB) adopts a broader test for what is considered “protected concerted activity” in the workplace. Workers will now have an easier time getting legal protection for speaking out about workplace conditions.

In the Miller Plastics Products Inc. decision, the Board ruled that a manufacturer violated the National Labor Relations Act (NLRA) when it fired an employee who publicly questioned the company’s COVID-19 protocols and decision to stay open in the early days of the pandemic.

Background

In March 2020, after the state of Pennsylvania ordered nonessential businesses to close, Miller Plastics opted to maintain operations with COVID-19 protocols in place. At an all-employee meeting on March 16, an employee complained to management about that decision. On March 18, the employee spoke to supervisors about his concerns with the company’s safety protocols.

On March 24, the employee was observed texting on his cellphone in a work area. Per case documents, supervisors “almost immediately, and without further investigation” went to leadership and recommended the employee be terminated. Shortly thereafter, the employee was informed that he was being terminated for “poor attitude, talking, and lack of profit.”

Case notes indicate that the employee had previously been counseled for excessive talking and production times but had not been issued a written warning.

‘Totality of the circumstances’

In its ruling, the NLRB indicated that it would look to the “totality of the circumstances” in determining whether an employee engaged in protected concerted activity and was therefore qualified for protection under the National Labor Relations Act (NLRA).

Significantly, the ruling overturns a Trump-era NLRB decision in Alstate Maintenance which held that employees must demonstrate prior concerted activity in order to prove their conduct was protected.

“The Board should not artificially constrain the definition of concerted activity, as the Alstate Maintenance decision did. By returning to the Board’s traditional approach, we better protect employees who seek to improve their working conditions,” said NLRB Chairman Lauren McFerran in a press release.

Analysts say the move will make it more difficult for employers to determine whether certain actions are protected by the NLRA. Under a totality of circumstances test, each situation will be evaluated on a case-by-case basis.

Takeaways for companies

Employers should be cautious when taking disciplinary action against an employee who has spoken out about terms and conditions of employment. Employers may want to proceed under the assumption that such activity could be construed as “concerted activity” regardless of the forum in which such comments are made.

As such, employers should take care to follow sound HR practices, establish clear policies, document violations, and apply disciplinary actions consistently.