Why Protected Concerted Activity Catches So Many Nonunion Employers by Surprise
Many nonunion employers do not expect that they may be one ordinary employee group chat away from a potential National Labor Relations Act (NLRA) issue. The common misconception is that labor law only matters when a union is involved. It doesn’t. As a result, disciplinary decisions that seem routine can quickly become unfair labor practice charges if managers fail to recognize when employees are engaging in protected concerted activity.
I saw variations of this scenario throughout my career at the NLRB. It starts with one text message:
“Anyone else tired of getting scheduled every Saturday?” Within minutes, five coworkers reply.
One agrees. Another complains about short staffing. Someone suggests talking to management together. The next morning, a supervisor hears about the conversation and decides the employee who started it is becoming a problem. That decision may have just created one.
The NLRA protects employees who act together to improve their wages, hours, or other terms and conditions of employment. Notice what is missing from that sentence: The word “union.”
Protected activity may include employees:
- Discussing scheduling concerns.
- Complaining collectively about staffing.
- Raising safety concerns.
- Talking about wages.
- Bringing group concerns to management.
All of those activities may receive protection under the NLRA even if no union organizer has ever set foot on the property.
How the NLRB Evaluates Employee Complaints and Employer Discipline
One of the most common reactions I heard from employers was: “We weren’t disciplining the employee for complaining. We disciplined them because of how they complained.”
Sometimes that distinction mattered. Sometimes it didn’t.
The NLRB does not treat protected concerted activity as a license to engage in unlimited misconduct. Employees can lose the Act’s protection when their conduct crosses the line into illegal or prohibited behavior under valid policies of the employer. But determining where that line falls is highly fact specific, and the Board looks at the setting in which the conduct occurred.
For example, when an employee confronts management during otherwise protected activity, the Board may consider where the discussion occurred, what the employee said or did, the subject of the dispute, and whether management’s own conduct contributed to the confrontation. Social media posts and many conversations among employees are evaluated based on the circumstances as a whole.
That means an employee who complains loudly, uses profanity, or challenges a supervisor does not necessarily lose the Act’s protection simply because the conversation became uncomfortable.
Before disciplining an employee following a workplace complaint, employers should first separate two questions:
- Was the underlying activity protected? Was the employee acting with coworkers, speaking on their behalf, raising a group concern, or trying to encourage group action about workplace conditions?
- Did the employee engage in misconduct serious enough to lose that protection?
The answer depends on what happened and the context in which it occurred.
Employers may still discipline employees for legitimate misconduct. The danger is assuming that an employee’s tone and choice of words automatically strips away NLRA protection.
And one more question matters: Would the company have treated the same conduct the same way if no protected activity were involved?
If the answer is unclear, that is usually a good reason to slow down before issuing discipline.
How Routine Workplace Complaints Become NLRB Charges
One thing I learned after years of litigating labor cases is that very few begin with dramatic confrontations. Most begin with ordinary conversations and a rushed response: An employee complains, the supervisor reacts, and the situation escalates. Nobody intended to violate federal labor law. But intent is not always the issue.
Employer Best Practices for Managing Protected Concerted Activity
Employers cannot prevent employees from engaging in protected concerted activity, nor should they try. The goal is to make sure managers recognize it and respond appropriately when it occurs.
A few practical steps can significantly reduce risk:
- Train the people most likely to hear the complaint first. Front line supervisors are often the first to encounter complaints about scheduling, pay, staffing, safety, or management. They should know that the words “union” and “NLRB” do not need to be mentioned for the NLRA to apply.
- Create an escalation point before discipline. When an employee has recently raised concerns involving coworkers or working conditions, require HR or another designated decision maker to review proposed discipline before it is issued.
- Document the legitimate reason for discipline. If misconduct warrants discipline, identify what occurred and apply the same standards used in comparable situations. Avoid vague explanations such as “negative attitude” or “not being a team player,” particularly when the employee has recently raised workplace concerns.
- Do not turn a complaint into an interrogation. Managers may need facts to address a workplace problem, but questioning employees about who complained, who agrees, or who participated can create a separate NLRA issue if handled coercively.
The next unfair labor practice charge at your company probably will not begin with a union organizer walking through the front door. It is far more likely to begin with an employee saying, “Is anyone else having this problem?”
The best time to recognize protected concerted activity is before deciding how to respond.