Attention non-union employers: Criteria for “protected concerted activity” expands

By Michael J. Burns, courtesy of SBAM Approved Partner ASE

Employers and HR professionals need to understand an old labor concept that is gaining new visibility and relevance in today’s non-union workplace. “Protective Concerted Activity” is a term previously only heard during union organizing drives and in labor and labor-law circles. The National Labor Relations Board (NLRB), with the encouragement of the Obama administration, has broadened the definition of what constitutes Protected Concerted Activity and in doing so has made itself into the latest “agency of last resort” for non-union employees, whether they intend to be organized into a union or not.

In the past, if an employee got in a jam and suffered an adverse employment action such as termination or suspension or some other form of discipline based on alleged illegal discrimination, he or she could go to the EEOC or that state’s civil rights department for redress. The employee who suffered some kind of adverse compensation practice could go to the Wage and Hour Division for redress. If the employee had a safety concern, he or she could go to OSHA and/or MIOSHA. And if the action was a violation of the employers’ established policies, he or she could engage an attorney to bring a suit against the employer under common law.

But what if the adverse employment action was consistent with every, or nearly every, law and regulation?

There is now another agency of last resort for the employee—the NLRB. As far as the NLRB is concerned, if a worker interacts with a fellow employee or employees, intentionally or not, or even attempts to communicate with another employee or employees via the Internet, he or she is engaging in concerted activity for mutual aid and protection, and is thus shielded from adverse employment action.

The NLRB considers concerted activity to be present based these criteria:

(1) There does not have to be a shared objective between two (or more) employees, or even agreement on something to do, to establish “concertedness.”

(2) NLRB precedent establishes that concerted activity includes not only true group complaints, but also cases “where individual employees seek to initiate or to induce or to prepare for group action.” Thus includes preliminary individual discussions, as long as they are not solely by and on behalf of the employee himself.

(3) The activity of even a single employee to enlist the support of a fellow employee(s) for mutual aid and protection is “concerted activity” just as much as if it is actual group activity.

All of this means that non-union employees have another government agency to come at the employer with, either in conjunction with another legal claim or when all other avenues of redress fail.

A recent example of this occurred when a cashier working in a grocery store decided to file an internal sexual harassment complaint. She enlisted the help of two coworkers to verify the action she deemed offensive by having them initial or sign the document describing the harassing activity. The cashier went on record as stating she never intended the action to be a joint complaint on behalf of other employees. The coworkers who signed the harassment complaint document stated they only signed it to verify what had happened.

The cashier suffered no adverse employment action against her, and was even guaranteed by the employer that no adverse action would be taken against her. Still, the NLRB found standing to hear the issue. The complaint charged that the employer acted improperly in instructing the cashier about her rights to communicate with other employees, and improperly questioned her about soliciting others’ signatures in support of her complaint. The Board actually found that the employer had not violated the NLRA with these actions. But it took issue with some of the company’s handbook policies, and by doing so the Board expanded its reach under the concerted activity doctrine.

And for that, the Board imposed the penalties it typically imposes on non-union employers—it made the employer 1) rescind certain policies it felt restricted communications between employees, 2) communicate that fact to all its employees, and 3) put up postings in all its facilities notifying employees of their rights under the NLRA, including the right to organize into a union.