On June 18, 2012, the National Labor Relations Board (NLRB) launched its website designed to educate nonunion employees of their rights under the National Labor Relations Act (NLRA). Protected Concerted Activity describes the rights of employees to act together for their mutual aid and protection, details how employees may access the NLRB’s processes to have alleged employer violations redressed and specifically notes that these rights apply to employees "even if they are not in a union." The website was intended to be a companion piece to the Employee Rights poster that the NLRB, by rule, directed employers to hang in their workplaces. Although initially set to go in effect April 30, 2012, implementation of the Employee Rights poster rule has been delayed pending litigation over the Board’s authority to promulgate the rule.
Visitors to the website are given 11 examples of the types of conduct the NLRB has deemed unlawful under the NLRA and descriptions of the relief granted. All of the examples involve employee discharges or discipline and the success of the Board in obtaining reinstatement to employment with full back pay or substantial payments (in one case, $900,000) in return for the employee’s waiver of the right to return to work. The examples include:
A case arising from an employee's termination for posting criticisms of her supervisor on Facebook. After a work-related incident, an employee criticized her supervisor in a post on Facebook, which prompted other employees to reply to the posting. The employee was suspended the next day and later fired. The NLRB issued a complaint alleging the employee was unlawfully fired for engaging in protected concerted activity when she posted on Facebook. Prior to a hearing, the case settled.
A case arising from the termination of five construction employees who posted a YouTube video about their hazardous working conditions. After the group of employees learned they were building concrete foundations at a former Superfund site, they expressed concerns about handling contaminated soil by posting a video on YouTube. The employer terminated each of the employees shortly after the video was posted. Following an investigation, the NLRB regional office issued a complaint. The case settled shortly thereafter, with the workers receiving full backpay and declining reinstatement.
A case arising from the termination of an employee for discussing dissatisfaction with wages in violation of company policy. A customer service representative for a diaper supply company was fired after discussing her wages with another employee, based on a policy in the company handbook that the NLRB later found to be unlawful. After the NLRB issued a complaint, the case settled with the employee receiving backpay and an offer of reinstatement. The employer also changed its handbook to inform employees that they do have the right to discuss their wages with each other.
A case arising from the termination of an employee who had not yet exercised concerted, protected activity. A pharmaceutical research firm fired a nurse after she complained to her boss that other employees were receiving special treatment. The Board found the employer violated the National Labor Relations Act by firing the employee to prevent her from talking about her complaints of favoritism with co-workers. The Board held that a "pre-emptive" termination to keep an employee from discussing wages, hours, or working conditions with other employees is unlawful, even if the employee had not yet engaged in protected activity, and ordered reinstatement with full backpay.
As the foregoing examples illustrate, the Board is eager to inform non-union employees that any action taken for the mutual aid and protection of employees is protected under the NLRA, including when such action is taken using social media on an employee’s own time and on the employee's specific page.
Although the Board currently estimates that only 5 percent of its caseload consists of non-union employee complaints, the Board is actively seeking new cases as a means to educate employees about their rights and the availability of the Board's processes to remedy violations.
What This Means for Employers
Employers should train managers and supervisors to recognize activity protected by the NLRA and to avoid possible challenges to discipline and discharge decisions before the Board. Employers should also review their handbooks and policies to ensure that they do not infringe on employees' exercise of concerted, protected activity. Rules, such as those that prohibit disparagement of the employer, inappropriate behavior directed at another employee, or the unauthorized use of a company logo/name are routinely being struck down by the Board as so vague that they "could" chill an employee's interest or desire in union organizing or other concerted activities.
Remedies for these violations may go far beyond simple reinstatement of discharged employees and payment of back wages. Typical Board orders now include the reading to assembled employees of a notice of employee rights under the NLRA, including the right to promote and engage in union-related activity.