Protected Concerted Activity

The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren't in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court. Recent cases involving a range of industries and employees are highlighted on the map below; please hover over a pin for a summary or click and the full story will appear below.

Lakewood, Washington
Construction contractor
19-CA-31580

A construction contractor fired five employees after several of them appeared in a YouTube video complaining of hazardous working conditions. Following an investigation, the NLRB regional office issued complaint. As a hearing opened, the case settled, with the workers receiving full backpay and declining reinstatement.

The employees, all immigrants from El Salvador, learned they were building concrete foundations at a former Superfund site and worried that the soil they were handling was contaminated with arsenic and other toxins. They also said they were required to wear badges indicating they’d been trained to handle hazardous materials, when in fact, the badges belonged to other workers and they had never been trained.

Three of the employees took their concerns public in a YouTube video posted on July 21, 2008. Speaking in Spanish, they hid their faces in shadow in an attempt to avoid retaliation. However, within 10 days, the three who appeared in the video and two others who were close to them had all lost their jobs with Rain City Contractors. Through the ensuing months, according to charges filed with the agency’s Seattle office, the employer continued to threaten and interrogate other employees, warning them not to talk about working conditions with outsiders.

Following an investigation of the charges, the NLRB Regional Director determined that the YouTube video was protected because the employees voiced concerns about safety in the workplace, and the public airing of their complaints did not lose the Act's protection because they accurately described their concerns about working conditions. On behalf of the NLRB General Counsel, the director issued a complaint calling for a hearing before an administrative law judge.

As the hearing began in June of 2009, NLRB attorneys were prepared to play the video, and to present evidence that the employer had been fined for numerous violations of state law regarding the same concerns as those raised by the workers. However, on the second morning of testimony, Rain City Contractors agreed to settle the case by giving all five workers full backpay for the period from their discharges to the settlement date. The workers declined reinstatement.

Questions?

Whether or not concerted activity is protected depends on the facts of the case. If you have questions, please contact an Information Officer at your nearest NLRB Regional Office, which you can find on this page or by calling 1-866-667-NLRB. The Information Officer will focus on three questions:

Is the activity concerted?

Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others.

Does it seek to benefit other employees?

Will the improvements sought – whether in pay, hours, safety, workload, or other terms of employment – benefit more than just the employee taking action? Or is the action more along the lines of a personal gripe, which is not protected?

Is it carried out in a way that causes it to lose protection?

Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection.

Section 7

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” -Sec. 7, NLRA

News

NLRB launches webpage describing Protected Concerted Activity
June 18, 2012

Acting General Counsel releases report on employer social media policies
May 30, 2012

Settlement distributes more than $300,000 to unlawfully discharged workers in Texas
February 10, 2012