Guide to Protected Concerted Activities for Non-Union Employees
In years past, unions were a powerful equalizing force. Employees across the nation unionized, using their collective voice to demand fair compensation and safe working conditions for themselves and one another. The employees could have an equal seat at the negotiating table by coming together.
Union membership has decreased over the years, but the power employees possess when they come together remains undiminished. For this reason, the National Labor Relations Act (NLRA) remains as relevant today as when Congress first passed the act in 1935.
The NLRA came into being during the decades that saw some of the highest union membership in the country’s history. Today, the NLRA provides critical protections to all employees. One specific provision of the NLRA concerns protected concerted activities for non-union employees.
Under the NLRA, protected concerted activity is an action that employees take collectively or on behalf of one another relating to their employment. Employers who attempt to interfere with, discourage, or penalize employees who come together to discuss and address work-related issues and conditions may face penalties for violating the NLRA.
What Is the NLRA?
The National Labor Relations Act (NLRA) is also called the Wagner Act after its chief architect, Senator Robert Wagner.
Work on the NLRA began in 1934 and culminated with the bill’s passage in 1935. With its passage, the National Labor Relations Board (NLRB) came into being and was tasked with enforcing the new employee rights enumerated in the act.
The NLRA was not the first time Congress attempted to address the relationship between employees, unions, and employers.
Before the act’s passage, employers could freely question, discipline, terminate, or otherwise retaliate against employees who were part of a union or banded together in support of one another. To prevent these practices, Congress passed the National Industrial Recovery Act (NIRA) in 1933.
The U.S. Supreme Court soon struck down the NIRA as unconstitutional, leaving employers again free to harass their employees and target union organizers and members.
Passage of the NLRA occurred during an era marked by increasingly large and violent strikes. During that time, Congress was favorably inclined to the plight of workers. Once the act was passed, President Franklin D. Roosevelt officially signed it into law on July 5, 1935.
Although Sen. Wagner and Congress drafted the NLRA with the concerns of unions in mind, the act is much broader in the rights it protects. One of the stated aims of the NLRA is to define protected concerted activities for non-union employees and union members.
The NLRA applies to nearly all employers whose business touches on interstate commerce. There are a few industries that the NLRA exempts from coverage and protection. For workers in these industries, concerted activities could result in disciplinary action or termination of their employment.
Does the NLRA Protect Non-Union Employees?
The NLRA applies to most workplaces and employees. These include workplaces where employees have organized into a union and where employees are actively considering forming a union.
Under the NLRA, employers cannot retaliate against employees who come together to discuss or take action to improve their working conditions or employment terms. They cannot impede union-related activities nor prevent non-unionized employees from forming a union.
However, the reach of the NLRA does not stop there. The act applies with equal force in workplaces where employees have not unionized or have not discussed unionizing. The NLRA even covers the concerted activities of employees without the intention of unionizing or joining a union.
Section 7 of the NLRA guarantees employees the right to engage in concerted activities. Employees include workers who are part of a union, those who have considered joining a union, and those who are not union members.
What Are Some Examples of Protected Concerted Activity?
The NLRA protects certain concerted activities employees engage in to promote their mutual employment-related interests. The term “concerted” refers to actions that employees do together as part of a unified effort, but it does not apply to actions done individually and separately for a particular employee’s benefit.
For protections of Section 7 of the NLRA, any concerted activities must be related to the purpose of collective bargaining or the employees providing “other mutual aid or protection.” This broad phrase covers not just compensation and benefits but also working conditions, safety issues, and other employment-related concerns.
The NLRB provides several examples of concerted activities that the NLRA protects.
More than One Employee Addresses an Employer About Increasing Their Wages
When you and another employee approach your employer to demand higher wages or negotiate better compensation, you engage in a protected concerted activity. It is immaterial whether your employer would consider your request unreasonable or unrealistic.
Suppose that you and two other employees all perform the same job duties. In speaking with your two colleagues, however, you learn that one colleague’s hourly wage is substantially higher than yours and your other colleague’s wages. The two of you decide to speak with your employer about the wage disparity and demand more pay.
In this example, meeting with your coworkers to discuss your compensation would be an NLRA-protected concerted activity. Your employer cannot interfere with these discussions nor attempt to dissuade you from having such talks. Employers who do so, whether through written policies, speech, or actions, could violate the NLRA.
In addition, addressing your employer and another employee would qualify as a protected concerted activity. It would be unlawful for your employer to retaliate against you for attempting to negotiate a better rate of pay for you and your coworker.
More than One Employee Discussing Work-Related Concerns Other than Pay
Protected concerted activity is not just directed toward conversations with your employer. Even discussing employment-related concerns with another coworker would qualify as a protected concerted activity. Such discussions would remain protected whether you intended to lead to formal talks with your employer or not.
Besides compensation and wages, other work-related topics would fall under this umbrella of protection. For example, discussing safety concerns and issues relating to working hours and conditions is permissible and protected under the law.
If you and others on your work crew notice that critical safety equipment is either broken or worn, you and your colleagues may rightfully conclude that your safety is in jeopardy. The NLRA protects you and your colleagues if you approach your employer and ask for new safety gear.
Additionally, the NLRA would offer you and your fellow employees’ protection from retaliation if you met and discussed the issue of the defective safety gear but decided not to bring the matter up to your employer.
An Employee Representing Other Employees in Discussing Improving Workplace Conditions
Sometimes employees agree that there are issues in the workplace, but they are still afraid to approach their employer as one group. They may feel their chances of obtaining whatever concessions they want from their employer will increase if only one employee confronts the employer on behalf of the group.
In this situation, the employees who meet together and discuss their working conditions would enjoy the protections of the NLRA. In addition, the employee who approaches the employer to voice the group’s concerns would also fall under the NLRA’s protections for concerted activities.
Suppose you and a group of your fellow employees have concerns about the hours your employer requires you to work. Your colleagues choose you as the person who will take the group’s concerns to your employer and ask for changes.
Even though you approach your employer by yourself, you are doing so on behalf of other employees to address a work-related issue. Therefore, the NLRA considers your actions to be a protected concerted activity.
The NLRA prohibits employers from taking disciplinary or retaliatory measures against employees who engage in these or other protected activities. Prohibited measures include demoting employees, terminating their employment, or reducing their wages due to their protected concerted activities.
What Is Not Considered Protected Concerted Activity?
Although the tent of protected concerted activity for non-union employees is large, some actions and activities fall outside its domain and do not enjoy NLRA protections. Engaging in these activities means that your employer can take disciplinary action against you, including terminating your employment.
One significant exception to the NLRA’s protections is claims made by employees about their employer that are misleading or outright false. These comments are outside the NLRA’s protections and could also subject the employees who make them to legal liability.
Suppose you demand that your employer raise your and your fellow employees’ wages or give you all a better work environment, but your employer refuses.
If you, either individually or with other employees, were to go to the media and make false statements about your employer and their business practices, the NLRA would not provide you any protection from discipline.
In addition, NLRA-protected concerted activities for non-union employees do not extend to government workers, agricultural workers, independent contractors, and supervisors.
Suppose you fall into one of these categories. In that case, your employer or the person with whom you have contracted can take disciplinary action against you for gathering with other employees to organize, address wages, or argue for improved working conditions.
Finding an Employment Lawyer to Help
Although legislation like the NLRA and unions are intended to reduce the power disparity between employers and their workers, you and your fellow employees can still feel intimidated by your employer. Because your employer controls your pay and working conditions, you may feel you have no rights.
Moreover, even if you know the rights that the NLRA and other legislation afford you, some employers need to be made aware of these laws. Other employers deliberately ignore these laws and their obligation to respect them, and they may feel confident that you and other employees will take no action to assert your rights.
In these and similar situations, having an experienced and tough employment lawyer on your side can give you the courage and resources you need to assert your rights. Your attorney can bring legal action and file complaints against your employer for illegal practices and unlawful retaliation taken against you.
You may have a case if you believe your employer has violated your workplace rights or has taken some adverse action against you because of concerted activities undertaken with other employees.
Speak with Wenzel Fenton Cabassa P.A. about your situation, and we will advise you of your rights and how to safeguard them. We have decades of experience fighting for employees in complex employment law disputes, including violations of the NLRA. Contact us today.