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Union and Protected Concerted Activity

The National Labor Relations Act (NLRA)

What are my employees’ rights under the National Labor Relations Act (NLRA)?

1. What types of conduct are considered protected concerted activity under the NLRA?

The scope of what may constitute protected concerted activity is broad and may include activity both within and outside of the workplace. In the workplace, these activities may include, for example: 

 

  • Employees discussing among themselves how much they are paid, their benefits, or other working conditions
Colleagues seated around a table sharing project ideas
  • Employees handing out leaflets pertaining to working conditions in non-working areas during non-working time, including parking lots while off duty
  • Employees circulating a petition asking for changes to working conditions, such as better hours or increased pay
  • Employees joining together seeking to speak with their employer about workplace issues
  • An employee making statements at a safety meeting referencing safety issues that concern them and other employees
  • Employees walking off the job to protest what they believe are unsafe working conditions
  • Employees collectively refusing to work overtime in protest of the employer’s decision to reduce their scheduled hours
  • Employees engaging in social, racial and justice advocacy, such as wearing buttons, t-shirts, or other paraphernalia advocating a particular cause, for their mutual aid or protection

 

Protected concerted activity may also take place outside of the workplace and involve third parties. For example, protected concerted activities may include:

 

  • Employees contacting a state or federal administrative agency regarding concerns over working conditions
  • Employee conversations about common workplace issues on social media platforms, such as Facebook, Twitter, etc., even if these conversations may affect the employer’s reputation
  • Employees contacting an employer’s customers or vendors, or speaking to the public or to reporters, regarding concerns over working conditions

2. May I enforce rules to protect what I consider to be confidential or proprietary information?

Employees have a broad right to communicate with one another about wages, benefits, and other terms and conditions of their employment. So, if a reasonable reading of the rule interferes with employee rights, it will be found unlawful. Thus, rules restricting employees from talking about their and co-workers’ wages, benefits, and working conditions will likely be found unlawful. However, employers typically may uniformly enforce certain neutral confidentiality rules that do not refer to employee information or working conditions. For example, employers typically may require confidentiality of proprietary information, such as trade secrets. 

 

When applying these rules, it is important to distinguish between rules restricting the disclosure of information from your files and rules restricting employee discussions about the use of the information generally. Although employees remain free to share and discuss certain information, employers typically may maintain and enforce internal information protection policies. 

 

Further, agreements that contain overly broad provisions requiring employees to broadly waive exercise of their rights under the NLRA—for example, non-disclosure, non-disparagement, and non-compete clauses, may violate the NLRA. 

3. May I communicate with my employees if they are organizing for union representation? 

Employers and labor unions have the right to express their views and opinions about the advantages and disadvantages of unionization, and about the benefits and drawbacks of union membership – although neither employers nor labor unions may make threatening or coercive remarks in response to union activity. For example, during a pre-election campaign, you may communicate with employees about the pros and cons of union membership, but you may not engage in any coercive or threatening conduct, such as: 

 

  • Threatening employees with adverse consequences, such as closing the workplace, firing or discipline, loss of benefits, more onerous working conditions, or more stringently enforcing rules, if they support a union, engage in union activity, or select a union to represent them
  • Promising employees benefits if they reject the union
  • Implying a promise of benefits by soliciting grievances from employees during a union organizing campaign.
  • Conferring benefits on employees during a union organizing campaign to induce employees to vote against the union
  • Withholding changes in wages or benefits during a union organizing campaign that would have been made had the union not been on the scene, unless you make clear to employees that the change will occur whether or not they select the union, and that your sole purpose in postponing the change is to avoid any appearance of trying to influence the outcome of the election
  • Questioning employees about their own or co-workers’ union activities or sympathies
  • Spying on or photographing employees’ union activities

4. May I take action against an employee who has filed a charge with the National Labor Relations Board (NLRB) or who has cooperated with the NLRB in an investigation or trial?

No. Section 8(a)(4) of the NLRA makes it an unfair labor practice for an employer “to discharge or otherwise discriminate against an employee because they have filed charges or given testimony under this Act.” For example, you may not: 

 

  • Discharge or otherwise discriminate against employees for announcing an intent to file a charge, providing information or giving sworn statements to an NLRB agent investigating a charge, refusing to disclose the identity of a charge-filing co-worker, talking to co-workers about future testimony, testifying in an NLRB proceeding, or refusing to testify voluntarily on your behalf
  • Discharge or otherwise discriminate against employees because you suspect or believe, correctly or not, that they had filed or were about to file a charge

Additional resources

Need more information?

The elaws (Employment Laws Assistance for Workers and Small Businesses) Advisors are a set of online tools developed by the U.S. Department of Labor to help employees and employers understand their rights and responsibilities under federal employment laws.

Common Concerns

Does the NLRA apply to my business?

What are my employees’ rights under the NLRA?

What rules govern how I interact with union representatives?

How do I contact the NLRB?

What is collective bargaining & collective bargaining agreements (CBAs)?

Collective Bargaining Mediation

U.S. Department of Labor

200 Constitution Ave NW, Washington, DC 20210

1-866-487-2365 | TTY 1-877-889-5627

1-866-4-USA-DOL