On January 28, 2011, the NLRB ruled that it is unlawful to terminate an employee who may, in the future, engage in a protected activity, even if the employee has not yet engaged in the protected activity. The board held that the employer terminated the charging party as a “preemptive strike” to thwart potential concerted activity. This ruling represents a significant departure from the longstanding rule that an employee actually has to engage in protected activity (like discussing wages with other employees) for an employer to be held liable for interfering with that protected “concerted activity.” This decision focuses on the employer's intent, rather than the employee's actions.

In Parexel International, LLC, 356 NLRB No. 82 (January 28, 2011) (http://www.nlrb.gov/case/05-CA-033245), the charging party (mistakenly) believed that a South African co-worker, who had quit and was later rehired, got a pay increase because the company favored South Africans. She complained to her supervisor. Human resources and the department manager investigated and asked the employee if she had discussed the perceived unfair treatment with her co-workers. She said she had not; days later, she was fired.

The National Labor Relations Act (http://tinyurl.com/69zmslg) prohibits an employer from terminating an employee for engaging in "protected concerted activity." Talking to co-workers about wages or other working conditions (described in Section 7 of the Act) is considered protected concerted activity. Following precedent, initially the NLRB administrative law judge concluded that the company had not violated the Act because the employee had not engaged in any protected activity. On appeal, the NLRB panel agreed that the charging party had not engaged in protected activity. However it found that, “[i]f an employer acts to prevent concerted protected activity — to 'nip it in the bud' — that action interferes with and restrains the exercise of Section 7 rights and is unlawful without more.”

A critical finding in this case was “the employer's intent to suppress protected concerted activity.” The facts that led to this decision are somewhat extreme and unlikely to be repeated. Nevertheless, the decision serves as an opportunity for employers to check their policies on termination of employees. An evenhanded, well-documented approach is necessary, and your attorney can help you design a termination protocol.