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Federal labor law provides significant protection to employees when they act together in hopes of improving their working conditions or wages. Employers need to be aware of this area of ​​employment law, as cold water discussions and labor strikes may have more in common, legally, than most would expect.

Most private sector employers are subject to the terms of the National Labor Relations Act (NLRA). Under Section 7 of the NLRA, both union and non-union 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 who allegedly interfered with, restricted, or coerced employees in exercising their Section 7 rights may find themselves fighting an unfair labor practice charge. To avoid this, it is imperative that employers understand what protected concerted activity is, how to recognize it, and how to ensure that their workplace policies do not punish or inadvertently punish protected activity.

What is concerted activity?

For the activity to be protected under Section 7, two elements must be met. 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 where an employee acts as a representative of other employees or tries to gain the support of colleagues.

The second element of section 7’s protection requires that the engaged conduct be for the purpose of mutual aid or protection. Actions are taken for the purpose of mutual aid or protection when seeking to improve working terms and conditions, such as wages or safety practices at work.

In particular, communications protected by Section 7 need not be truthful or accurate to be protected. However, some conduct may not be considered protected under the NLRA if it is particularly unfair or contemptuous of the employer.

Recognition of concerted activity

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

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

Review of policies and practices

Accordingly, employers should be wary of implementing policies or taking measures that employees may perceive as interfering with their right to collectively advocate for improved working conditions. The standard for evaluating whether a particular policy unlawfully interferes with, restricts, or constrains an employee’s rights under Section 7 is not the employer’s intent 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 it is not necessary to engage in protected concerted activities at the physical workplace to gain protection.

Social media policies are one area where employers may unintentionally violate employees’ Section 7 rights. For example, the NLRB has held that an employer unlawfully restricted its employees’ exercise of protected concerted activities when a social media policy expressly prohibited employees from discussing colleagues’ salaries, other compensation and working conditions online.

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

A recent NLRB decision

On September 19, 2024, the NLRB’s interpretation of protected concerted activity was upheld when the Sixth Circuit Court of Appeals enforced the Board’s order in McLaren Macomb. In that case, it was held that employers violate the NLRA only by providing employees with severance agreements that require a broad waiver of Section 7 rights through nondisclosure, nondisparagement, or confidentiality agreements. The Board specifically challenged that employees would be forced to choose between receiving benefits and exercising their rights under the NLRA.

McLaren Macomb represents a greater tendency to expand the definition of protected concerted activity; is a perfect example of why employers need to be mindful of Section 7 protections, whether their employees are unionized or not.

Takeaways

Union and non-union workers have the right to engage in protected concerted activities for the purpose of mutual aid or protection. This can take place online or offline and is protected if it is aimed at improving working conditions. To avoid an unfair labor practice charge, employers should review their policies and ensure they are not so broad that an employee could interpret them as restricting their rights to engage in concerted activity .

Joshua Waugh is an attorney at Barran Liebman LLP. He advises employers on a range of labor and employment law matters. Contact him at 503-276-2138 or (email protected).

Lex Shvartsmann is a legal clerk at Barran Liebman LLP. She collaborates with attorneys on client training, legal research, and employment policy and handbook projects. Contact her at 503-276-2111 or (email protected).

The opinions, beliefs and views expressed in the preceding commentary are those of the authors and do not necessarily reflect the views, beliefs and views of the Daily Journal of Commerce or its editors. Neither the author nor DJC guarantees the accuracy or completeness of any information published here.