Why All Employers Should Understand Protected Concerted Activity

Recently, a client asked me to draft a policy which prohibits employees from writing or saying negative comments about other employees. The client was concerned about the toxic environment that was developing in the workplace because of social media posts. I explained to my client that the National Labor Relations Act (“NLRA”) prohibits employers from restricting or prohibiting employees from discussing workplace issues. Employers often fail to realize that the NLRA can protect employees even in non-union workplaces. One such scenario involves concerted activity, which refers to situations where employees act together, or on behalf of one another, to improve their wages, hours, or working conditions. These activities are protected, whether a workplace is unionized or not. What is Protected Concerted Activity? Protected concerted activity is broadly thought of as an activity involving two or more employees, or one employee acting on behalf of others, relating to workplace conditions like scheduling, wages and benefits, safety or management practices. Examples may include a group of workers raising concerns about workplace safety, organizing to request schedule changes, or discussing pay or benefits with each other and/or management. It can also include one employee speaking to management on behalf of a group of employees about these types of issues. An employee’s right to engage in concerted protected activity means that the employer may not discharge, discipline, threaten or coercively question an employee on the basis that the employee engaged in the protected activity. Common Policy Risks to Avoid This topic is relevant for all employers because company policies may be problematic even if they unintentionally restrict employees’ rights. Common areas of risk include: Social Media Policies: Broad statements like “employees may not post negative comments about the company or its employees” may unlawfully restrict an employee’s right to discuss workplace issues even outside of work. The language in a social media policy should be drafted so that it could not reasonably be construed to infringe on employees’ rights to protected concerted activity under the NLRA. Confidentiality: While employees may not disseminate trade secret or confidential information, employees generally have a right to discuss wages and working conditions. Workplace Conduct: Policies requiring employees to always be positive or respectful may be problematic if applied to limit legitimate discussions about workplace issues or complaints. Complaint Reporting: Open door policies are generally considered a good practice, but employers should not actively discourage employees from discussing workplace issues with each other before going to management. Recording Policies: Employers should refrain from prohibiting outright all recording of company meetings and conversations. Although it is lawful to prohibit recording of confidential and trade secret information, a complete prohibition of any and all discussions and meetings may infringe on an employee’s right to record protected concerted activity. Recommendations for Employers Company policies should be specifically tailored to define unacceptable workplace behavior while avoiding vague language such as “prohibiting inappropriate discussions” or “making negative statements.” Policies should also be drafted to protect legitimate business interests without restricting employee discussions about workplace conditions. Finally, policies should be consistently enforced in the workplace and regularly reviewed by legal counsel to ensure compliance. Larkin Hoffman’s labor and employment attorneys can assist in creating and administering workplace policies that avoid potential NLRA violations. Contact us to learn more.