All employees have the right to engage in protected concerted activity, and an employer who decides to discipline and/or terminate when an employee exerts his or her right should think twice. Protected concerted activity occurs whenever two or more employees express concern about working conditions in a nonviolent way, and it is protected by the National Labor Relations Act (NLRA). The activity does not have to occur in conjunction with union organizing, although this is the most common situation. It just has to fall under the rubric of taking “concerted action” for “mutual aid and protection,” when employees are acting to improve areas such as working conditions, hiring practices, employee discipline or work assignments.

Employees may have discussions regarding wages and benefits. The signing of a petition by a group of employees for better wages and benefits, with a single employee acting as spokesperson for that group and bringing it to management’s attention, would likely be protected activity. Employer policies or an informal practice that prohibits discussion on compensation should not be created, and those that are currently in place need to be discontinued.

Employers can be held accountable for retaliating against employees who engage in protected concerted activity. Section 8 of the NLRA states that, “It shall be an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the NLRA.” An employer who has committed this type of violation may be required to reinstate employees who have been discharged with full back pay and interest. The employer also may be required to post the violation and the remedy for all employees to see.

There are some circumstances in which the National Labor Relations Board and the courts have found that concerted employee behavior, even if it was intended for mutual aid or protection, did not have the protections under the NLRA. These include, but are not limited to, employees who break the law, engage in violent behavior or refuse to follow an employer’s instructions. An employer can try to avoid interfering with nonunion employee’s rights under Section 7 by determining the following:

Is there concerted activity in that two or more employees are acting together, or is one employee acting on the authority of other employees?

• Are the employees engaging in the activity for their “mutual aid or protection”?
• Is the employer’s adverse employment action motivated by the employees’ protected concerted activity? Did the employer know of the activity? Was the employer motivated to act by it?
• As with any employment-related incident that can lead to termination, discussion with an attorney prior to taking action is highly recommended.

Professional Pointer: Penalizing employees for expressing their concerns about working conditions may violate their rights.

Please Note: This material is provided as general information and is not a substitute for legal or other professional advice. Contact the Knowledge Center for more information.

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