Dive Brief:

• An employee who complained about a newly created supervisor position was engaging in concerted activity and therefore was protected by the National Labor Relations Act (NLRA), the 2nd U.S. Circuit Court has ruled (Meyer Tool, Inc. v. National Labor Relations Board, Nos. 18-812, 18-893 (2nd Cir. Feb. 26, 2019)).
• Action is "concerted" if it has "some demonstrable link with group action," the court noted, and the employee's concerns — including the qualifications of the supervisor and management's explanation for the change — were supported by two other employees. Three employees went together to HR to file complaints; after a heated verbal exchange, one was told to leave the premises or the police would be called. He refused and an HR employee called the police. The company also fired him. Although employees who engage in abusive conduct may lose the NLRA's protections, the employee never crossed that line, the 2nd Circuit concluded, even though the conversation became heated.
• Because there was substantial evidence that the employee was protected by the NLRA, the 2nd Circuit upheld the National Labor Relations Board's (NLRB) previous findings and granted its application for enforcement.

Dive Insight:

Meyer Tool raises some important points about the NLRA. The law protects even nonunionized employees who engage in "concerted activity," which can include anything from joint efforts to improve working conditions to complaints to HR, if they are made by more than one individual or undertaken as a call to action. Enforcement authorities also have determined that the law encompasses participation in group events such as "Day Without Immigrants." And last year, the NLRB concluded that a Michigan Burger King franchisee violated the NLRA when it disciplined employees for talking in the parking lot about a strike.

Attempts to stifle employee conversations about pay is a particular hot-button issue that often attracts NLRB's attention, as Lowe's recently discovered. In that case, an NLRB administrative law judge said employee discussions about wages are "the grist on which concerted activity feeds."

So where's the line? In general, any time an employee engages in group activity or discussions related to working conditions and is threatened with reprisals, an employer is heading down a risky path. Last year, an employer was found not to have violated the NLRA for yelling at employees to "get back to work," as there was no threat of adverse action, but that same employer did violate the law when it "coercively interrogated" an employee about a flyer relating to working conditions.