NLRB Redefines Concerted Action to Include Individual Actions of Contingent Workers and Employees

NLRB Redefines Concerted Action to Include Individual Actions of Contingent Workers and Employees

As we mentioned in an earlier blog, contingent workers have as much right to join a workplace union as permanent employees. The National Labor Relations Board (NLRB) encourages labor unions to challenge any inappropriate use of temporary workers.

They may be at your workplace only for a limited period of time – but be really wary of treating your contingent workers with casual disdain or neglect. Their posts on Facebook and other social media will carry just as much weight as a permanent employee should they choose to point a finger at your behavior in general and your treatment of them in particular! They may also choose to question the processes of their actual employer, namely the staffing agency that deployed them with you. Now, such public denunciation by just one unhappy worker will also be treated by the NLRB as concerted activity and protected.

Under Section 7 of the National Labor Relations Act (NLRA), employers are prohibited from discriminating or retaliating against employees who engage in protected concerted activity. Until recently, ‘concerted activity’ was taken to mean actions involving terms and conditions of employment, involving more than one employee. A recent decision against 200E 81st Restaurant Corp, the National Labor Relations Board’s (NLRB) definition of the word ‘concerted’ was extended further to cover action by a single person without seeking evidence that other workers agreed or consented to join the claim!

In 200 E. 81st Restaurant Corp, the worker alleged that the restaurant had violated FLSA rules which protect workers who receive tips as part of their compensation. He filed a concerted activity claim as a collective action claim without indicating that other workers consented to the filing. When the restaurant retaliated against the worker by removing him from its schedule, the worker sought protection under Sec 7 of the NLRA. The NLRB based its decision on a prior ruling stating that an individual is protected by Section 7 of the NLRA when he/she files a class or collective action seeking to initiate or induce group action regarding wages, hours or working conditions. The action can be addressed in court or before an arbitrator.

Other significant decisions from the NLRB which protect concerted activity include its decision to protect workers’ online posts and comments. The ‘like’ endorsements of workers on a colleague’s negative or obscene comments against their common employer on Facebook are also protected by the NLRB. In a recent case, the US Court of Appeals found fault with a company for terminating two workers for ‘liking’ a post which used profane language against them. It is unlawful to discipline workers either for unfavorable comments or for expressing tacit support by providing their ‘likes’ for the post unless the company can prove that the comments are malicious fabrications or recklessly derogatory and deliberately obscene. In most cases, companies have found that, in a dispute, the NLRB usually protects the workers’ interests.

We advise companies to revise their Internet and/or social media policies to incorporate these insights. Federal agencies will determine the legality of each post, and rulings are not based on bad taste in terms of the content of the post. The true protection is to ensure that communications mechanisms exist within the company to surface and address work issues before the frustrated worker elects to use social platforms to air grievances.

If your company has taken steps to address this issue, you can aid other managers by sharing the language you use in your corporate policies and the innovative issue resolution programs that you may have enacted. Let us know.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.