With the new year upon us and amid an uptick in activity by the National Labor Relations Board (NLRB or the Board), the time is ripe for employers to refresh themselves on a basic labor principle that sometimes goes overlooked: The right of employees to engage in protected concerted activity applies in nonunion workplaces.

What is concerted activity?

At the most basic level, concerted activity occurs where employees organize or discuss shared concerns regarding the workplace. A worker’s right to engage in concerted activity is protected under Section 7 of the National Labor Relations Act (NLRA or the Act). The NLRB’s website prominently provides a number of examples of what it considers protected concerted activities, including “talking with one or more co-workers about your wages and benefits or other working conditions, circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, openly talking about your pay and benefits, and joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace.”

The Board has drastically expanded its interpretation of behavior that qualifies as protected concerted activity over the past year, which we’ve discussed here. For example, under the Miller Plastics case, solo protests should also be considered protected by the Act if they could be viewed as intending to induce mass actions based on elements from a wide range of possible evidence (so much for the “concerted” nature of this legal concept). Further, under the Lion Elastomers LLC II decision, the Board went so far as to restrict an employer’s ability to issue discipline in response to a worker’s profane speech or conduct purportedly taking place in the context of workplace activism. We previously published an in-depth analysis of that decision as well, available here.

What does all this mean for nonunion employers?

Even if your workforce is not unionized, your workers still have the right to engage in protected concerted activity under the NLRA. This means that the organization cannot discharge, discipline, threaten or coercively question a worker on the basis of their engagement in concerted activity. Again, to drill down here, this is the case even in workplaces where the workforce has not unionized and even if employees are not considering unionization whatsoever.

Even in wealth management firms? Yes, even in wealth management firms!

On January 10, the NLRB issued a decision in the case of Vesta VFO, LLC and Andrew Definis and Nicolas Definis that directly underscores this point. In Vesta, the Board upheld an administrative law judge’s ruling that brothers Andrew and Nicolas Definis (nonunion investment analysts) had engaged in concerted activity when they discussed and requested salary increases. According to the Board, instead of respecting this protected activity, Vesta (a nonunionized wealth management firm) discharged Andrew and Nicolas. The Board weighed the timing of the discharges, Vesta’s shifting justifications and the limited investigation into the Definis brothers’ discovery of the payroll information, concluding that their salary discussions and associated raise requests were an unlawful motivating factor in carrying out their discharges. Thus, the Board determined that Vesta violated the NLRA when it discharged the Definis brothers on this basis. The Board ordered Vesta to reinstate the brothers to their former jobs and make them whole with regard to any loss of earnings and other benefits, among other adverse consequences for Vesta.

The bottom line

• The NLRA protects the rights of workers to engage in an ever-widening range of activities that can and will be deemed concerted activity.
• Even if your workplace is nonunion, the Act’s protection still applies to nonunion workers.
• If your organization mistakenly takes adverse action against workers on the basis of their engagement in concerted activity, now is the time to immediately cease such action, as the Board is increasingly interested in targeting nonunion workplaces.

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