BEWARE OF PROTECTED CONCERTED ACTIVITY CLAIMS UNDER SECTION 7 OF THE NLRA
Many employers in non-union settings believe that the National Labor Relations Act (“NLRA”) has no relevance to their operations. While this belief is partially accurate, it fails to consider certain employee rights apply to all workplaces regardless of union affiliation. Employers can face substantial penalties for violation of Section 7 of the NLRA.
Section 7 of the NLRA guarantees employees the right to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.” There are two main components of Section 7 protections.
Generally, “concerted activity” takes place when employees act as a group for their mutual aid or protection. It does not include activity by a single employee for that individual’s own personal benefit. However, individual employees may be protected under the Act if they are discussing the terms and conditions of their employment either physically around co-workers or in the same virtual space (e.g., TikTok, Instagram, etc.). The key inquiry is whether the subject matter of the discussion is for the benefit of an individual employee, or may affect multiple employees.
“Mutual aid or protection” refers to the terms and conditions of one’s employment. Not surprisingly, terms and conditions of employment comprise a wide array of activities, including but not limited to pay, benefits, treatment by management, dress codes, workplace policies, scheduling, and safety. Employees act for mutual aid or protection when they seek to improve their position as employees through channels outside the immediate employee-employer relationship.
Over the past decade, the National Labor Relations Board (“NLRB”) has scrutinized various seemingly noncontroversial HR policies and practices against Section 7 rights, including disciplinary actions for disparaging comments directed at supervisors, social media policies, respect in the workplace policies, even “at-will” employment policies. The Board’s approach to such analysis has evolved over recent years to reflect a more employer-friendly viewpoint. Nevertheless, employers need to exercise caution with respect to their policies and practices to avoid running afoul the protections.
The manner in which employees may exercise their Section 7 rights are so broad that they may offend traditional notions of permissible workplace conduct. Indeed, the NLRB has overturned adverse employment actions even when the conduct in question involved false representations or profane language by employees. However, Section 7 rights are not absolute, and have some limitations, to wit: 1) employees may not disclose confidential information; 2) employees may not make knowingly false representations; and 3) employees may not engage in harassing conduct in violation of state and federal law.
The most common mistake employers make in violation of Section 7 is placing restrictions on discussions of wages. If you have policies or practices that explicitly or impliedly forbid employees from talking about how much they are paid, those should be eliminated immediately. Notably, this practice is also forbidden in Nevada pursuant to the recently passed Senate Bill 293.
Section 8 of the NLRA prohibits employers from coercing, restraining or interfering with employees’ exercise of Section 7 rights. Thus, if an employer interferes with or otherwise restrains an employee in the exercise of those rights, it has committed an unfair labor practice under the NLRA. Employees who can prove that they were subjected to an unfair labor practice may be entitled to reinstatement and backpay. Given this ever-evolving issue, employers should seek guidance from NAE before responding to employee conduct that involves a discussion or complaint about the terms and conditions of employment.
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