Parker Poe Adams & Bernstein LLP

Section 7 of the National Labor Relations Act protects employee “concerted activity.” Concerted activity means two or more employees engaging in discussions or actions intended to address terms and conditions of employment. In general, employees are given a significant amount of leeway in criticizing management, co-workers, and even customers if the comments are made in the context of concerted activity. Earlier this month, the National Labor Relations Board drew a line between protected concerted activity and mere griping among employees.

In Quicken Loans, Inc., the employer terminated the employment of a mortgage banker overheard in a restroom engaging in a discussion involving profanity about a client. The employees criticized the client’s failure to follow instructions to contact a mortgage specialist. In response to the termination, the employee filed an unfair labor practice claim with the NLRB, alleging that the termination violated his Section 7 rights.

The NLRB panel rejected this complaint, concluding that the employees’ discussion did not constitute concerted activity. While criticizing customers can be protected in some circumstances, the board characterized this conversation as “mere griping.” The employees in question did not discuss taking any action in regards to the situation, nor was there evidence of systematic problems with such referrals. In this case, the conversation only amounted to a personal compliant. Employers should carefully investigate allegations of policy violations involving employee complaints and make clear determinations as to the protected nature of the conduct.

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