As explained in a prior post, the National Labor Relations Act (NLRA) gives employees the right to engage in “protected concerted activity” when such activity is intended to improve their wages, benefits and working conditions. We also discussed NLRB General Counsel Jennifer Abruzzo’s intention to expand what falls within the definition of “working conditions” in determining whether concerted employee activities are protected under the NLRA. In short, she believes that working conditions should include social justice and political advocacy issues, even if such activities take place outside of work and are not directly connected to a particular employer.

But what does protected concerted activity look like? Perhaps the most common misconception concerning protected concerted activity is the notion that it has to be connected to union organizing or other matters associated with union representation. In truth, while many forms of protected concerted activity relate to union representation, that isn’t a legal requirement. Any activity engaged in by two or more employees in regard to their working conditions may be protected under the NLRA, regardless of whether it relates to union representation.

Thus, where two or more employees complain together about a company policy or where an individual employee brings a group concern to the attention of management, such individuals generally are protected by federal labor law. Similarly, an employee who seeks to initiate or encourage group action is also protected under the NLRA.

In the contentious context of mandatory vaccinations, for example, protected concerted activity could (in some cases) include such activities as initiating, signing and/or submitting a petition to protest the employer’s vaccination policy, demanding to meet with management for a discussion of the policy, etc. In a more extreme example, a group of employees that stages a walkout to protest a vaccination policy may, in many circumstances, be protected under the NLRA.

But not all concerted activities are protected. For example, intentional work slowdowns, sit-downs, refusals to work mandatory overtime and refusals to perform only a portion of typically assigned duties are “partial strikes” that are not protected under the NLRA, even if multiple employees participate. “Intermittent” strikes, where employees adopt a planned strategy to refuse to report for work on a sporadic and repeated basis over a prolonged period of time, are also unprotected in some instances. Finally, strikes intended to force the employer to violate applicable law can, in some circumstances, lose the protection of federal labor law and subject participating employees to be disciplined.

Takeaways

  • Protected concerted activity under the NLRA is not limited to issues concerning union representation and can include many other forms of activity that involve two or more employees.
  • Not all employee concerted activities are protected under the NLRA, but the distinction between those activities that are protected and those that are not can be subtle and extremely fact dependent.
  • Because current NLRB General Counsel Jennifer Abruzzo intends to take a very broad view of the activities that are protected under the NLRA, employers should exercise extreme caution in disciplining employees who raise group concerns.