Many employers pride themselves on having an open and positive work culture. However, it may cause concern if employees are discussing their pay and other sensitive information with one another. Employees have a legal right to discuss their pay and other aspects of their jobs, and this is referred to as concerted activity in the workplace. In addition to having legal protections, concerted activities can actually provide an opportunity to improve employee-employer relations and positively impact the organization.
Here's what employers need to know about concerted activities under the National Labor Relations Act (NLRA) and how respecting your employees' rights can create a better workplace.
What Is Concerted Activity in the Workplace?
Under the NLRA, Section 7 defines concerted activity as employee actions that concern wages and/or working conditions for both themselves and other employees. It is a group activity, as opposed to an individual employee seeking a raise, promotion, or change in work environment.
In 2023, the definitions of protected concerted activities broadened with the outcome of the Miller Plastic Products decision by the National Labor Relations Board (NLRB). The pro-worker decision expanded the definition to include activities for "mutual aid or protection" and improving the conditions of their employment, regardless of whether the workplace has a union or not.
Examples of Protected Concerted Activities
Protected concerted activities include, but are not limited to:
- Discussing pay and benefits with one or more co-workers.
- Gathering petition signatures to improve hours, conditions, or other aspects of the workplace.
- Group refusal to work in unsafe conditions.
- Open discussion of salaries and benefits.
- Speaking to the employer as a group.
- Reporting problems in the workplace to the press or the government.
- Bringing group complaints to an employer's attention.
- Organizing a union or discussing doing so.
In the aforementioned Miller Plastic Products case, an employee was terminated for questioning the company's decision to keep a plant open at the height of the COVID-19 pandemic. Because the employee inquired about COVID-19 protocols relating to worker safety during a meeting where all the staff was present, and was subsequently terminated, the NLRB found that the employee's complaint was a protected concerted activity.
Importance of Protecting Employee Rights
Employee rights are not just a legal obligation; complaints about poor work environments can actually lead to a more positive workplace that continuously attracts and retains the best talent.
If employees feel they are not paid enough and organize for better pay, it fosters a strong employer brand that is attractive to both potential employees and customers.
According to a Deloitte study, 82% of customers are more inclined to spend their money at establishments that treat their employees well and take proper steps to address employee complaints. In the age of social media, where information travels fast and employees can quickly gain a platform to discuss poor working conditions, small and mid-size firms are at the most risk of revenue loss for maltreatment of employees and willful noncompliance with labor protections.
A firm that is compliant with labor laws and honors protected concerted activities gains more trust among employees and the public alike.
How Concerted Activities Can Positively Impact the Organization
Concerted activity doesn't always end in unionization. Even if it did, Pew Research says that 55% of Americans feel that labor unions positively impact the country. A unionized workplace will not only attract top-tier employees who desire security, but it also increases public trust.
Employees of non-union workplaces have the same rights to protected concerted activities as union members do. The concerns they raise in concerted activities should be seen as a chance to improve communications between the employer and employees and address issues before they become serious problems.
For example, if workers express concerns about unsafe conditions in a plant, expecting them to just work through it can lead to negative press, social media bombardment, and government intervention. A visit from the state or federal labor department can result in costly fines or litigation, especially if employees are terminated for protected concerted activities.
By addressing the issues raised by employees, it fosters a more positive work environment where they don't have to feel afraid for voicing concerns. In the long run, this fosters more trust between employees, customers, and the general public.
Employer Obligations Towards Concerted Activities and Best Practices
Employers cannot interfere, restrain, or coerce employees if they are trying to organize a union or improve working conditions and/or pay as a group. To comply with the NLRA, employers should consider the following best practices:
- Do not terminate or take other punitive action against employees (such as assigning more difficult work or untenable hours) that you suspect are partaking in protected concerted activity.
- Use concerted activity as an opportunity to improve working conditions and relationships with employees and stakeholders.
- Avoid threatening to shut down or withhold pay if employees are trying to organize a union.
- Do not offer incentives to employees for crossing a picket line or promise rewards in exchange for not supporting unionization or efforts to improve conditions.
- Encourage open dialogue with employees so they can bargain in good faith, ensuring that both parties get what they want.
Role of HR in Managing Concerted Activity
HR professionals must have a solid understanding of employee rights and how they impact the organization. If they do not have a background in labor relations, training and education of HR staff and management in employee rights and concerted activities should be part of their onboarding.
Legal Compliance and Avoiding Retaliation
Employers that willfully ignore employees' rights regarding protected concerted activities can face long and expensive lawsuits and steep penalties if employees file NLRB complaints of retaliation. The federal Department of Labor may respond to retaliation complaints by forcing reinstatement of the terminated employees, payment of lost wages, and additional damages. State labor departments may assess their own penalties and damages as well.
These retaliation claims can be avoided by thoroughly understanding employer obligations under the NLRA and other relevant labor laws like the Fair Labor Standards Act, and not interfering with protected concerted activities.
Benefits of Partnering with Affiliated HR & Payroll
Affiliated HR & Payroll clients can access enhanced compliance support if they are unsure how to handle workplace complaints and unionization attempts. Learn more in the HR Support Center Portal.
LEGAL DISCLAIMER: The information provided in this article is for general informational purposes only and does not constitute legal advice. Readers should contact their attorney to obtain advice with respect to any particular legal matter.