NLRB Redefines Protected Concerted Activity in Workplace

In January 2019, the National Labor Relations Board (NLRB) narrowed the standard for when an employee’s conduct is considered protected concerted activity. The 3-1 ruling upheld the dismissal of a complaint accusing Alstate Maintenance LLC of violating the National Labor Relations Act (NLRA) when its skycaps commented negatively about the tipping habits of certain passengers and subsequently refused to assist passengers with their baggage. The Alstate ruling returns the NLRB to a previous “Meyers Industries test” that states an employee must be advocating or presenting an actual group complaint or engaging in conduct meant to incite group action in order to qualify as a concerted activity—in contrast with Obama-era NLRB rulings that created an environment where concerted activity was considered to be anything an employee did in a group setting. “Alstate puts the focus back on ‘concerted’ where activities are protected only if a person is presenting a group complaint or inciting group action,” concludes Jason Hungerford, employment attorney at Nilan Johnson Lewis who advises clients on their labor practices. “While employers should not see this ruling as a way to alter policies that restricts what employees should say or do in the workplace, they can use it as a tool to evaluate whether employee conduct is truly protected.” Employers should also be on the lookout for the NLRB to take on other test cases that may further define protected workplace concerted activity, specifically in regard to wage discussions. To speak with Jason Hungerford about protected concerted activity in the workplace, contact him at jhungerford@nilanjohnson.com or 612.305.7741.

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