inherently concerted activity

N.L.R.B., 768 F.2d 51 (2d Cir. The National Labor Relations Board ("NLRB") has been on a roll in recent years, protecting such employee activity as complaining on Facebook or even hitting the "Like" button. The Judge ruled the employers social media policy violated Sections 7 AND 8 of the NLRA. They would not be lawful under the Lutheran Heritage Rule. You want to develop a social media policy that. (4) communications involving inherently concerted discussions about vital aspects of workplace life. So the NLRB disagreed with the Judge. has a webpage that discusses protected concerted activity relative to social media, and how it came to two main points. It is not meant to convey the Firms legal position on behalf of any client, nor is it intended to convey specific legal advice. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. Preliminarily, it should be noted that concerted activities by The Facebook Post as Protective Concerted Activity Here, the NLRB concluded that the Facebook post constituted protected concerted activity. Build a Morning News Digest: Easy, Custom Content, Free! In part, GC 21-03 indicates that the NLRB will be robustly enforcing the Acts provisions that protect employees Section 7 rights and that cases involving the retaliation against concerted employee conduct will be vigorously pursued. GC 21-03 cites to increased workplace health and safety issues resulting from the COVID-19 pandemic as well as employees political and social justice advocacy concerns as factors necessitating increased enforcement of the NLRA. The memo also reminds the Board that some activity may be "inherently" concerted. The NLRB established the balancing test in what is commonly referred to as the, Boeing Company case (case No. Advice Memo 1 and Advice Memo 2); however, there does not appear to be any NLRB precedent or commentary about emoticon use in this context.). Senior Communications and Marketing Manager Copyright 2006 - 2023 Law Business Research. While he acknowledges that the current NLRBs recent decisions reflect a more restricted interpretation of protected activity, Ohr nonetheless emphasizes that there remain open avenues to establish Section 7 rights and directs the Boards regional offices to use them. A recent National Labor Relations Board advice memo opined on whether an employees social media post that included a meme and prompted a supportive emoji from a coworker constitutes Section 7 protected concerted activity, and whether that employees subsequent termination would violate Section 8(a)(1) of the National Labor Relations Act. Your social media policy simply cannot interfere with that right. And if the Board accepts the GCs invitation to expand the inherently concerted doctrine, even individual comments regarding race will likely come under the Acts protections. The next generation search tool for finding the right lawyer for you. It is clear from the Memorandum that an increase in the issuance of complaints can be expected, based on allegations that unfair labor practices were committed by employers because employees conduct or activities constituted protected, concerted activities. A Decade of NLRB Decisions Leave Continued Confusion. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. The ALJs decision could also provide employees an expanded definition of protected activity by accepting that inherently concerted activity ought to be protected so long as the activity is being engaged in by employees for the purpose of improving the conditions of their workplace, including what seems to be workplace culture and ideologies. The Lutheran Rule found that employers violated the NLRA by maintaining workplace rules that dont explicitly prohibit or restrict protected activities, but that an employee could reasonably interpret as prohibiting the exercise of NLRA rights, a so-called "chilling effect. All rights reserved. nexus to employees' interests as employees, activities that And take note: These protections are not limited to unionized workforces. Category 1 is lawful, category 2 requires individualized scrutiny, and category 3 is unlawful. for evaluating employer policies as lawful or unlawful within the context of the NLRA. Therefore, the Judge took each paragraph and ruled on it instead of considering the whole social media policy and how a reasonable person would interpret the policy. No one knows why the NLRB has delayed a final decision on the case, but attorneys. Employees have a right to discuss working conditions and wages, and benefits with coworkers. On 31 March 2021, Peter Sung Ohr, Acting General Counsel of the National Labor Relations Board (NLRB), issued Memorandum GC 21-03 (GC 21-03) to the regional field offices signaling significant changes to enforcement priorities under Section 7 of the National Labor Relations Act (NLRA). We expect our employees to exercise judgment in their communications relating to Bemis to effectively safeguard the, Communicate in a respectful and professional manner, Avoid disclosing proprietary information; and, Each employee is responsible for respecting the rights of their coworkers and conducting themselves in a manner that does not harass, disrupt, or interfere with another persons work performance or in a manner that does not create an intimidating, offensive, or, It sounds so reasonable. Our Blog, written by Seyfarths team of experienced labor law litigators and labor relations counselors from the firms dedicated Labor & Employee Relations Practice Group, brings to the business community thought leadership on cutting edge labor law and labor relations issues with the goal of providing employers with tools necessary to reduce their potential exposure. ", Despite establishing these three review categories, the NLRB was back to the drawing board in the 2021Bemis Company case (case 18-CA-202617) or they were at least in a position of revising what was already on the drawing board. On January 11, 2019, the National Labor Relations Board clarified and narrowed the standard for finding that an employee engaged in protected concerted activities under the National Labor Relations Act. Whether the employers purported virtue signaling had any impact on the ALJs ruling is anyones guess. Concerted Activity Law and Legal Definition. the Regional Offices that the activity may be concerted not only The NLRA is a federal law that grants employees the right to form or join unions; engage in protected, concerted activities; address or improve working conditions; or refrain from engaging in such activities. Concerted activity is undertaken jointly by employees for the purpose of union or organization, collective bargaining, or other mutual aid or protection. 1985). to the extent the rule impacts employee rights - and whether the employer has legitimate justification for the rule. Review your content's performance and reach. See Seyfarths Blog on GC Memo-23-04. Check out our proactive strategies that support positive employee relations. Importantly, the GC also emphasizes in his Memorandum that employee discussions of certain vital elements of employment, may render the discussions inherently concerted, even if group action is nascent or not yet contemplated. In this regard, such discussions may be viewed as protected concerted activity, irrespective of whether other employees agree with the complaint or join in the protest.. NLRB prosecutor. The first recognizable social media site appeared in 1997, so for over two decades, it has fallen on Administrative Judges, Appellate Courts, and the National Labor Relations Board (NLRB) to address employee use of social media within the context of the NLRA. After reading the above, it wouldnt be surprising for any employer to think, What a mess! What is more clear is that, except in limited situations, the Act grants broad leeway for employees to publicly address race-related topics together. Find out more about Lexology or get in touch by visiting our About page. Around the time of the above-described discussions, the Charging Party complained to management about having an unmanageable workload. 1985). Section 8 of the NLRA prohibits employers from discriminating against employees for exercising their Section 7 rights. So remember that historically, to engage in concerted activity, an employee must be acting with or on behalf of one or more other employees. Mail or In-Person Voting? Employers face the challenges of monitoring and managing what employees post about the workplace, management, andunionizingwithout violating protected, concerted activityemployee rightsgranted in the National Labor Relations Act (NLRA). We conclude that the Employer violated Section 8 (a) (1) because the Charging Party's classroom discussion about issues of race faced by Black faculty and students, as well as systemic racism in medicine, was inherently concerted and was for mutual aid or protection. Become your target audiences go-to resource for todays hottest topics. To embed, copy and paste the code into your website or blog: Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra: [Ongoing] Read Latest COVID-19 Guidance, All Aspects, [Hot Topic] Environmental, Social & Governance. Mondaq Ltd 1994 - 2023. Therefore, the Judge took each paragraph and ruled on it instead of considering the whole social media policy and how a reasonable person would interpret the policy. Find out more about Lexology or get in touch by visiting our About page. Employees have a right to discuss working conditions and wages, and benefits with coworkers. Similarly, social media, by its nature, conveys a certain degree of authority, and companies also dont want employees making statements as if they are official company statements. The representative concluded by warning the employee to be careful posting online to avoid getting in trouble. All rights reserved. Specialist advice should be sought Employers should expect an increase in complaints brought by the NLRB, including increased prosecution of cases involving retaliation against concerted employee conduct. Tell non-authorized employees they must make it clear they are not speaking for the company. 2023Thomson Reuters. Returning to the Luther Heritage Rule is the foundation of an NLRB doctrine that recognizes inherently protected concerted activity. No one knows why the NLRB has delayed a final decision on the case, but attorneysWeinberg, Roger & Rosenfeldinquired in August 2022 about the delay, In this case, the decision is important to the writing of employer social media policies. On March 31, 2021, Peter Sung Ohr, Acting General Counsel (GC) of the National Labor Relations Board (NLRB or Board) issued a Memorandum (GC 21-03) to all NLRB Regional Offices outlining his perspective regarding the prosecution of charges involving whether certain employee conduct constitutes protected, concerted activities. The GC Memorandum is of significance to all employers because of the breadth of the concept of what constitutes protected, concerted activity expressed by the GC, as the chief NLRB prosecutor. The NLRB further surmised that the Charging Party's Facebook post discussed job security, thus rendering it "inherently" concerted activity. All Rights Reserved. 19-CA-090932). The GC notes in his Memorandum that employees' right to For example, he cites as protected, concerted activity: Ohr indicates that, going forward, employee activities regarding a variety of societal issues will be viewed through a lens of potential Section 7 protection. Write a blanket prohibition on discussing work on social media. JAFA does not create a private cause of action, so applicants cannot bring suit for a violation of the law. Under the Lutheran Heritage Rule, the NLRB said a policy that prohibits making false, vicious, profane statements about the employer or coworkers could be construed to prohibit the exercise of NLRA rights and thus unlawful. Given you cant have an employee handbook social media rule that violates Section 7 or Section 8 rights, the two social media policy issues needing attention in the Bemis case were: The Bemis case supplemented the Boeing case by adding additional context. What does this actually mean? The subsequent paragraphs fully defined the general expectations outlined in the first paragraph. when it is engaged in with or on the authority of other Prohibit employees from contacting traditional media about workplace conditions, Require employees to protect proprietary information like vendor lists, trade secrets, or customer names, Disparage the company, associates, customers, business practices, vendors, or other employees just to gripe, State that there are designated employees who are authorized to speak for the company on social media. While the Board has yet to pass on the General Counsels invitation to expand the inherently concerted doctrine, it will likely have the chance to do so in short order. Now additionally, with regard to the concerted piece of the PCA equation, Acting GC Ohr's memo reveals really an aggressive understanding of when an employee engages in concerted activity. DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. employers because of the breadth of the concept of what constitutes Likenesses do not necessarily imply current client, partnership or employee status. Discussing Wages with Fellow Employees is Inherently Concerted Activity: NLRB | Practical Law The GC Memorandum is of significance to all employers because of the breadth of the concept of what constitutes protected, concerted activity expressed by the GC, as the chief NLRB prosecutor. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. Despite the varying interpretations, some social media policies are converging at the NLRB. N.L.R.B., It is clear from the Memorandum that an increase in the issuance of complaints can be expected, based on allegations that unfair labor practices were committed by employers because employees' conduct or activities constituted protected, concerted activities. Seyfarth Shaws Management Writes: Practical Labor Law Updates Blog provides a one-stop resource for employers to stay current on developments in traditional labor law and labor relations, including recent NLRB and court decisions, legislative and regulatory updates, and labor relations and collective bargaining current events. According to the ALJ, by displaying the Black Lives Matter message on their work uniforms, the employees acted to advance their interest as employees to work in an anti-racist, pro-civil rights, and pro justice workplace. The employer, then, violated the Act when it barred the employees from wearing the buttons in the workplace and by sending several employees home who refused to take them off. Protected Protest: The National Labor Relations Board General Counsels Quest to Expand the Definition of Inherently Concerted Activity, New Jersey Extends Unemployment Insurance Benefits for Striking Workers, NLRB Reigns In the Definition of Concerted Activity, Dressing Up the Standard In a New Wardrobe: NLRB Decision Spells Curtains for Trump Board Independent Contractor Test, The Supreme Court Pours Some Concrete on the Right to Strike, The Board Strikes Back: Hateful Rhetoric Connected to Protected Concerted Activity Now Shields Employees from the Consequences of Their Actions, California Peculiarities Employment Law Blog, Workplace Safety and Environmental Law Alert Blog. They ruled that the policys impact on. We recommended that you go ahead and flag policies that would not meet the Lutheran Heritage Rule or a similarly restrictive rule. To the extent employers choose to go on a limb, though, they might run the risk of employees seeking to do the same thing during regular working hours and on work time. mutual aid and protectionis legally protected, not only when Recommended that Rivera-Chapman's discharge allegation be dismissed after finding that: there was no direct evidence that Rivera-Chapman engaged in protected concerted activity, such as discussing wages with other employees to initiate, support or encourage group action; and. It is not uncommon for the NLRB and its general counsel to modify or reverse their interpretations of the NLRA with changes in the composition of the Board. It states that recent decisions issued by the current Board have restricted [Section 7 rights] for employees. Specifically, GC 21-03 criticizes Alstate Maintenance1 and Quicken Loans2 for applying mutual aid and protection narrowly. Seyfarth Synopsis: Recently, an Administrative Law Judge (ALJ), issued a decision in two cases that create the opportunity for the National Labor Relations Act to have a more expansive view of what constitutes protected activity. While the NLRBs memo does not establish binding precedent, it provides valuable insight into how the NLRB may interpret non-text responses as supportive messages and the position the NLRB may take in future protected concerted activity cases involving a virtual space or on social media. The Memorandum says that employee activities are protected when they involve efforts to improve their lot as employees through channels outside the immediate. Specifically, the memo suggested that discussions about quality of supervision should be added to this list. The NLRBs response? 1986), disapproved of by Ewing v. Rivera-Chapman testified that he did not discuss wages with fellow employees; there was no evidence that Rivera-Chapman ever said or did anything "looking toward group action," or that AEA believed he did; there was no evidence that AEA believed that Rivera-Chapman engaged in protected concerted wage discussions; the muddled evidence suggested that any discussions between Rivera-Chapman and his co-worker were "mere griping," that, under Board precedent, would not qualify as protected concerted activity; the majority improperly used evidence of general animus rather than particularized animus when applying, the majority erred by re-adopting the "inherently concerted" analysis that appellate courts have criticized (for example, see, Employers should expect the current Board majority to rely on this decision to permit the General Counsel to rely on inferences and presumptions when the types of evidence traditionally required under. The ALJ's decision could also provide employees an expanded definition of protected activity by accepting that "inherently concerted" activity ought to be protected . NLRB General Counsel Jennifer Abruzzo has made no secret of her desire to overhaul extant law to protect employee rights under Section 7 of the Act. Asking employees to remain civil online and not harm the companys reputation is reasonable, isnt it? Alternative Energy Applications Inc. (AEA) hired David Rivera-Chapman in July 2011. See Seyfarths Blog on GC Memo-23-04. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. the NLRA protects all employees, not just exemplary employees, from adverse action by an employer based on their protected activity. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Indeed, while employees right to band together has traditionally arisen with union campaigns or protests about wages or hours, Ohr points further to workplace safety and health concerns and, in some circumstances, employees political and social justice advocacy. This case involved both Section 7 and 8 NLRA rights. Ultimately, both coworkers deleted their comments. The Memorandum says that employee activities are protected when they involve efforts to improve their lot as employees through channels outside the immediateemployee-employer relationshipas well as in support of employees of employers other than their own. Employee discussions that address certain vital elements of employment can make the discussions inherently concerted even if group action is nascent or not yet contemplated. In other words, as long as the activity has a direct connection to employee interests, including political and social justice advocacy, it is protected. Counsel for AEA submitted a position statement to OSHA noting that he was not retaliated against for reporting safety issues but rather for decreasing morale by not performing his work, reportedly disclosing his higher rate of pay to others (causing a mother of another employee to complain to the company) and using company time to seek other employment. Enter to open, tab to navigate, enter to select, Discussing Wages with Fellow Employees is Inherently Concerted Activity: NLRB, Legal Update, NLRB Clarifies Analyses of Concerted and Protected Activities, 24 hour Customer Support: +44 345 600 9355. What is more clear is that, except in limited situations, the Act grants broad leeway for employees to publicly address race-related topics together. The AGC will be looking to expand the concept of "inherently concerted" to include discussions by employees on a wide range of topics beyond the "vital categories of workplace life," such as those concerning workplace health and safety and unlawful discrimination. In the case of Bemis Company, Inc. vs. Graphic Communications Conference of the International Brotherhood of Teamsters, Local 727-S, the NLRB overturned a Judges decision on the legality of a social media rule in August 2020. The majority (Members Hirozawa and Schiffer): the General Counsel initially needed to show that Rivera-Chapman engaged in protected activity, AEA knew about that protected activity and AEA had animus; after the General Counsel made the initial showings, AEA needed to show that it would have discharged Rivera-Chapman in the absence of his protected conduct; the General Counsel would need to show that the employer's reason for the discharge was pretextual; the Board treats evidence that an employer believed that an employee engaged in protected concerted activity as it would evidence that an employee actually engaged in protected concerted activity and that the employer knew about that protected activity (. Member Miscimarra, in partial dissent, noted that: AEA did not violate the NLRA by terminating Rivera-Chapman because: there was no uncontroverted evidence showing that he engaged in protected concerted activity with fellow employees relating to the discussion of wages. vigorous prosecution of unfair labor practice charges, involving The Teamsters charged that Stericycles work rules intruded on employee Section 7 rights and asked for the Boeing Rule to be overturned with a return to the Luther Heritage Document. This memo is particularly useful as a reminder for employers to be cautious when reacting to employees social media posts. In a decision dated December 16, 2014, in. Ohr outlines that the Board has found discussions involving wages, schedules, and job security as "inherently concerted.". Seyfarth Synopsis: Recently, an Administrative Law Judge (ALJ), issued a decision in two cases that create the opportunity for the National Labor Relations Act to have a more expansive view of what constitutes protected activity. 68 (2019). The fifth NLRB rule in the Bemis case implies inherency, something that's becoming a very large issue in defining NLRA employee concerted rights in social media. Should Congress Micromanage 401(k) Investments? On February 2, 2012, Rivera-Chapman amended his charge to also allege that he was unlawfully instructed not to discuss his wages. Indeed, on May 3, 2023, an ALJ held that grocery store employees who wore Black Lives Matter buttons on their uniforms were engaged in protected concerted activity. the activity involves matters concerning the workplace but also The policy doesnt necessarily need to be written as narrowly as possible (again, read the policy as a whole). A desire to induce group action is implied when employees discuss (1) higher wages, (2) changes in work schedule, or (3) job security. Therefore, employee activities are protected when they involve mutual aid or protection. Protected concerted activity includes: (1) statements by lone employees addressing their coworkers to initiate, induce, or prepare for group action; (2) a lone employees communications with management to convey a truly group complaint; (3) statements made to elicit group action from like-minded coworkers for a personally held view about working conditions; and. And if the Board accepts the GCs invitation to expand the inherently concerted doctrine, even individual comments regarding race will likely come under the Acts protections. The NLRA applies to almost all private employers but does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act. It sounds so reasonable. ), Back in December of 2017, the NLRB established a test to determine if a social media policy isfacially neutral, meaning the policy doesnt intentionally interfere with Section 7 rights of a particular group of people. Mondaq uses cookies on this website. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. How do we define a chilling effect on NLRA Section 7 rights today, and what is inherent protected concerted activity? allegations of concerted activities, should be expected. This free assessment will guide you to the right strategy to create employee advocates. Keep a step ahead of your key competitors and benchmark against them. On March 31, 2021, Peter Sung Ohr, Acting General Counsel (GC) of the National Labor Relations Board (NLRB or Board) issued a Memorandum (GC 21-03) to all NLRB Regional Offices outlining his perspective regarding the prosecution of charges involving whether certain employee conduct constitutes protected, concerted activities. 1984), decision supplemented, 281 NLRB 882 (N.L.R.B. Such activities frequently are "protected" under federal and state labor laws. The Teamsters charged that Stericycles work rules intruded on employee Section 7 rights and asked for the Boeing Rule to be overturned with a return to the Luther Heritage Document. GC 21-03 expressly warns that the NLRB will be considering such categories as well as other applications of the inherently concerted doctrine for the foreseeable future. By using our website you agree to our use of cookies as set out in our Privacy Policy. First, the General Counsel determined that the subject matter of the classroom discussion, that is racial bias in the medical profession, systematic racism, and discussion of the Dean's email as a failure in addressing concerns of Black faculty, much like wages, work schedule changes and job security, was inherently concerted activity because . The majority could consider this unalleged and unlitigated ULP liability theory because it was closely related to the tried allegations. By Gerard Morales On March 31, 2021, Peter Sung Ohr, Acting General Counsel (GC) of the National Labor Relations Board (NLRB or Board) issued a Memorandum (GC 21-03) to all NLRB Regional Offices outlining his perspective regarding the prosecution of charges involving whether certain employee conduct constitutes protected, concerted activities. Among GC Abruzzos more controversial initiatives outlined in GC Memo 23-04 and as she recently reaffirmed at the National Employment Lawyers Council Conference is a proposal to expand the Acts protection to employee statements about race, age, gender, sex, and even insurance. The NLRB disagreed. Authors: Brian R. Garrison , Erik Mosvick. National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum stating that, in her prosecutorial view, college athletes are statutory employees under the National. perspective regarding the prosecution of charges involving whether action. Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. The Charging Partys post started, Just in case someone needed to know, with a shrugging emoticon. This case involved both Section 7 and 8 NLRA rights. whether other employees agree with the complaint or join in

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