Why Everyone in HR Needs to Know About "Protected Concerted Activity"

There are many HR people who are unfamiliar with labor law, especially here in the Southeast. But recent events dealing with the National Labor Relations Board (NLRB) make it clear that everyone in HR, and management for that matter, needs to know something about it. The Democrat controlled (read Labor controlled) NLRB is in a made rush toward the end of the year to make as many decisions as possible why Craig Becker is still in place. (His recess appointment on the board ends with the new Congress).

One broadly ballyhooed activity of the NLRB was its investigation regarding Facebook postings as a "protected concerted activity." But more about that in a minute. First, to understand their statements you must know what "protected concerted activity" is and how it impacts a company. Directly from the NLRB website comes this definition.

The National Labor Relations Act (NLRA) protects employees’ rights to engage in protected concerted activities with or without a union, which are usually group activities (2 or more employees acting together) attempting to improve working conditions, such as wages and benefits. Some examples of such activities include:

a) 2 or more employees addressing their employer about improving their working conditions and pay;
b) 1 employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;
c) 2 or more employees discussing pay or other work-related issues with each other.

The NLRA also protects any individual employee’s right to engage in union support, membership, and activities.
The NLRA protects an individual employee’s right not to engage in union activities or in other protected, concerted activities.

You will notice the sections I highlighted. "Protected concerted activity" is not restricted to companies which are already populated with unions. In fact, employers violating these rights often prompt employees to seek union support. This law is also why it is illegal for companies to have policies that forbid employees from discussing their pay with other employees. Such a policy can be construed as prohibiting employees from discussing pay or other work-related issues with each other, a direct violation of the NLRA.

Now back to the Facebook blowup. This deals with the actions of a Connecticut company in dealing with a worker in a disciplinary situation. She was already a union member and in this disciplinary situation, or at least one she perceived as disciplinary, she requested union representation. She was denied that representation (probably not a good thing because of the Weingarten rule.) Later that day she went home, and from her home computer, posted disparaging remarks about the supervisor on her Facebook page. Other employees, who were Facebook "friends", added to the remarks and supported her on her page. Two weeks later she was fired for violating the company's Blogging policy. A complaint was filled and the NLRB investigated. The result of their investigation was stated as:

"the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity."

As blogger/attorney Daniel Schwartz, at Connecticut Employment Law Blog states, "Employers are increasingly looking at and monitoring social media usage. The NLRB's complaint makes it clear that it intends to challenge employers who over-reach." He indicates that a hearing for the case is scheduled on January 25, 2011.

So what is the upshot of this? First you need to make sure your policy is not one of those overreaching policies. As one union blog stated "This is a big step forward for workers, who don’t necessarily have to fear being fired for discussing their work on Facebook with coworkers on their own time. But the key phrase here is “with coworkers” – there may be a danger of an employer taking disciplinary action if an employee takes to Facebook about their work, but doesn’t involve coworkers in the discussion." You need to make sure your policy does not step on an employee's right to engage in protected concerted activity.

Secondly, be very careful before taking action against an employee for Facebook, or any other social media site, activity. Make sure you understand the players and the issues involved. INVESTIGATE before you REACT.

Third, train your supervisors and and managers on this. 

As a last note, I did read that the supervisor was still free to sue the employee for defamation of character. We will see.

"Concerted Activity": Why NonUnion HR Needs to Know About It.

Today I am the guest on DriveThruHR, the Blog Talk Radio show hosted by Bryan Wempen.  His theme this week is union activity. My topic is "Concerted Activity" and why everyone in HR, especially non-union HR should know about it. The website US Legal Definitions defines concerted activity as activity "...undertaken jointly by employees for the purpose of union or organization, collective bargaining, or other mutual aid or protection. Such activities frequently are "protected" under federal and state labor laws."  Activites undertaken by employees, EVEN non-union employees, is protected by Section 7 of the National Labor Relations Act (NLRA). This means that employees banding together to complain about working conditions or wages are most likely engaging in a protected activity. Action taken against these employees may violate Section 7 of the NLRA.

This is why companies that have "salary secrecy" policies may be treading on thin ice. What I mean by this is that if you have a policy that forbids employees from discussing their wages may be violating the NLRA. You can forbid an employee from revealing to or discussing wages with someone outside the company, but it is shakey at best to forbid employees from discussing it internally. Terminating such an employee may result in a charge of an "unfair labor practice" (ULP) which will be rectified by reinstatement of the employee and payment of back wages.

Concerted activity is not just restricted to wages, however. According to the website Law Memo, "Protected concerted activity is that activity engaged in for employees’ “mutual aid or protection.” Such activity includes employee efforts to improve working conditions and terms of employment. If an employee is engaged in protected concerted activity, an employer may violate the NLRA if, in addition:

• The employer knew of the concerted nature of the employee’s activity;
• The concerted activity was protected by the Act; and
• The adverse employment action at issue (e.g., discharge) was motivated by the employee’s protected concerted activity.

 For a nonunion employer to be unaware of the concept of "concerted activity" and to violate employee rights as a result may invite the employees to seek the aid and "comfort" of union representation. So be careful and prudent.