Protected Concerted Activity: What Employers Need to Know

3 criteria to determine whether employee activity falls under the protection of Section 7 of the NLRA

Posted by Dawn Lomer in Human Resources on September 10th, 2012

The concept of protected concerted activity has garnered a lot of attention this year. Beginning with a rash of terminations for social media posts and the subsequent rulings by the NLRB, the subject has become a bugbear for employers, some of whom feel helpless to protect their companies against the gossip of disgruntled employees.

Then came the ruling that there can be no blanket requirement to keep workplace investigations confidential. This one has raised a lot of eyebrows and voices, as employers protest what they see as a serious breach in the investigative process. And while companies can still make a case for confidentiality, based on certain criteria, the fact remains that the burden is now on the employer to prove the need for confidentiality, rather than this being the default.

Crazy Times for Employers

These are crazy times for employers, who now need to curb their tendencies to discipline employees for actions that sometimes seem disloyal and destructive, such as:

  • criticizing the company on a social media site
  • discussing the details of internal investigations
  • making public statements that are critical of the company and its management
  • discussing details of working conditions with the public and the media

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So what is an employer to do? The logical answer is to become familiar with the act that governs these activities, to ensure compliance on the one hand, but also to make sure you’re not giving up opportunities to exercise your own rights to discipline employees for activities that don’t fall under the definition of protected and concerted.

What Does Section 7 Say?

According to the NLRB:

“Employees shall have 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 other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

What Does it Mean?

There are three items to be considered when determining whether activity by employees falls under the Section 7 parameters.

  1. Whether or not the activity is considered to be “concerted”. To be “concerted” an activity must involve two or more employees acting together to improve wages or working conditions. However,  activity of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.
  2. Whether or not the activity willbenefit other employees. If the changes being advocated (such as pay, hours, safety, etc) will benefit other employees, the activity can be considered to be concerted. In other words, personal griping is not protected, but griping on behalf of more than one employee is.
  3. Whether the activity is carried out in a way that maintains its “protected” status. An activity that falls into the concerted category and also benefits other employees can lose its protection if it can be shown to be reckless, malicious or violent.

Consider these three criteria before formulating policies or disciplining employees for activities that might fall under Section 7. If you have any doubts, talking to an employment lawyer before taking action may keep you out of trouble.

Dawn Lomer
Dawn Lomer

Managing Editor

Dawn Lomer is the managing editor at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.

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