Protected Activity in Non-Union Workplaces

The typical employer believes that the National Labor Relations Board (“NLRB”) is only concerned with companies that are unionized.

However, the NLRB declares that the National Labor Relations Act (“NLRA”), the law it enforces, gives employees the right to act together to try to improve their pay and working conditions, with or without a union.

If employees are fired, suspended, or otherwise penalized for taking part in NLRB protected group activity, the NLRB will fight to restore what was unlawfully taken away. These rights, the NLRB proclaims, were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court.

Important Questions Related to Protected Concerted Activity in Non-Union Workplaces

 Is the activity concerted?

Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.

Does it seek to benefit other employees?

Will the improvements sought – whether in pay, hours, safety, workload, or other terms of employment – benefit more than just the employee taking action?  Or is the action more along the lines of a personal gripe, which is not protected?

Is it carried out in a way that causes it to lose protection?

Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection.

In following posts, we will analyze recent cases that involved non-union employees engaging in potentially protected concerted activity.

If you are in need of an audit to ensure you are in compliance with federal and state labor and employment laws, contact the experienced employment lawyers at Luchansky Law today.

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