The importance of recognizing concerted activity in the workplace

Federal labor law provides significant protection to employees when they are acting together in the hopes of bettering their working conditions or pay. Employers must be cognizant of this area of labor law because water cooler talk and labor strikes may have more in common, legally, than most would expect.

Most employers in the private sector are subject to the terms of the National Labor Relations Act (NLRA). Under Section 7 of the NLRA, both unionized and nonunionized employees have the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employee actions protected by this part of the law are often referred to as “protected concerted activity.”

Employers that allegedly have interfered with, restrained, or coerced employees in the exercise of their Section 7 rights may find themselves battling an unfair labor practice charge. To avoid that, it is imperative that employers understand what protected concerted activity is, how to recognize it, and how to ensure their workplace policies do not accidentally punish or chill protected activity.

What is concerted activity?

For activity to be protected by Section 7, two elements must be satisfied. First, the conduct must be concerted. A concerted activity is one in which two or more employees take action. A concerted activity can also be a situation in which one employee is acting as a representative of other employees or is trying to gain support from peers.

The second element of Section 7 protection requires that the conduct engaged in be for the purpose of mutual aid or protection. Action is taken for the purpose of mutual aid or protection when it is intended to improve terms and conditions of employment, such as wages or workplace safety practices.

Notably, communications protected by Section 7 do not need to be truthful or accurate to be protected. However, some conduct may not be considered protected under the NLRA if it is especially disloyal or disparaging to the employer.

Recognizing concerted activity

The National Labor Relations Board (NLRB) has held that protected concerted activity occurred when an employee refused to remove Black Lives Matter insignia from their uniform, when an employee exclaimed concern over an employer’s COVID-19 response, and even when employees merely clicked the “like” button on a coworker’s Facebook post that commented about terms and conditions of employment.

Given the fact-specific nature of protected concerted activity, there is no one-size-fits-all approach to identifying it. When in doubt, employers should seek counsel prior to taking any action that may impact an employee’s right to engage in protected concerted activity.

Reviewing policies and practices

Accordingly, employers should be wary of implementing policies or taking action that employees might perceive as interfering with their right to collectively advocate for improved working conditions. The standard for evaluating whether a given policy unlawfully interferes with, restrains, or coerces an employee’s Section 7 rights is not the employer’s intention in promulgating such policy. Rather, the standard is whether employees would reasonably interpret the policy as restricting their rights. It is important to note that protected concerted activity need not take place in the physical workplace to earn protection.

Social media policies are one area where employers may unintentionally run afoul of their employees’ Section 7 rights. For example, the NLRB has held that an employer unlawfully restrained its employees’ exercise of protected concerted activities when a social media policy expressly prohibited employees from online discussions regarding coworkers’ wages, other compensation, and working conditions.

Other policies that the NLRB says chill employees’ right to engage in protected concerted activity are electronic communications policies, off-duty conduct policies, pay transparency policies, and standards of conduct. In drafting these and other policies, employers should ensure that any restrictions in place are not so broad in scope as to inhibit employees’ protected behavior.

A recent NLRB decision

On Sept. 19, 2024, the NLRB’s interpretation of protected concerted activity was affirmed when the 6th U.S. Circuit Court of Appeals enforced the Board’s order in McLaren Macomb. In that case, it was held that employers violate the NLRA by merely offering employees severance agreements that require a broad waiver of Section 7 rights through nondisclosure, non-disparagement, or confidentiality agreements. The Board specifically took issue with the fact that employees would be made to choose between receiving benefits and exercising their rights under the NLRA.

McLaren Macomb represents a larger trend toward the expansion of the definition of protected concerted activity; it’s a perfect example of why employers must be mindful of Section 7 protections regardless of whether their employees are unionized or not.

Takeaways

Unionized and nonunionized workers alike have a right to engage in protected concerted activity for the purpose of mutual aid or protection. This can occur online or offline and is protected if it is intended to improve working conditions. To avoid an unfair labor practice charge, employers should review their policies and ensure that they are not so broad that an employee might possibly construe them as restricting their rights to engage in concerted activity.

Joshua Waugh is a Barran Liebman attorney. He advises employers on a range of labor and employment law matters. 

Lex Shvartsmann is a law clerk with Barran Liebman. She partners with attorneys in client trainings, legal research, and drafts of employment policies and handbooks.