In a recent news release, The National Labor Relations Board (NLRB) announced that it has launched a new webpage which focuses on the right of employees to engage in “protected concerted activity.” The opening paragraph of the new webpage aptly summarizes the NLRB’s enforcement objectives: “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the [NLRB] will fight to restore what was unlawfully taken away.”
Section 7 of the National Labor Relations Act (NLRA) specifically protects employees who engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection ....” This statutory provision has been interpreted by the NLRB and the courts to mean that employees have the right to act together to improve wages and other terms and conditions of their employment. Significantly, this right applies to both union and non-union employees. Consequently, the NLRB may issue a complaint against any employer which restricts Section 7 rights or otherwise imposes rules that have the effect of chilling the exercise of those rights.
The new webpage describes various cases in which employers have been found to have violated an employee’s right to engage in protected concerted activity. For example, in one of the cases the NLRB issued a complaint against an employer which terminated an employee who criticized her supervisor on Facebook. The Board also found that the employer’s internet policy, which prohibited employees from making negative statements about the company or supervisors, also interfered with the right to engage in concerted activity. Other examples include situations where the Board found that employees were unlawfully disciplined for complaining about wage cuts or safety issues—again, in violation of their Section 7 right to engage in concerted activity.
The webpage also invites workers to contact the NLRB if they have questions about protected concerted activities. The webpage states that upon receipt of an inquiry, the Board’s Information Officer will seek information regarding the nature of the activity, whether it sought to benefit other workers, and whether it was carried out in a way that might cause it to lose protection under the NLRA. Depending on the information provided, the Board presumably could then encourage an employee to file a charge against the employer for violation of Section 7 and possibly other rights.
With its new website highlighting the right of protected concerted activity, the NLRB clearly is trying to educate a wider audience of workers. As the NLRB Chairman Mark Gaston Pearce stated in the NLRB’s press release regarding the website: “We think the right to engage in protected concerted activity is one of the best kept secrets of the [NLRA], and more important than ever in these difficult economic times. Our hope is that other workers will ... understand that they do have strength in numbers.” The website further reflects the NLRB’s aggressive effort to enforce Section 7 rights. Employers should recognize that their policies (such as those dealing with social media and electronic communications) are now subject to greater scrutiny by the board. Therefore, careful attention should be given to the development, implementation, and enforcement of any work rule or policy that could be construed to restrict or interfere with the right of an employee to engage in concerted activity.