Since the passage of the National Labor Relations Act (NLRA) in 1936, employees have possessed a right to engage in “protected concerted activity,” meaning they have the right to discuss workplace concerns and take action for mutual aid or protection. Indeed, the National Labor Relations Board’s (NLRB or the Board) website explicitly informs employees that they “have the right to act with co-workers to address work-related issues in many ways” and lists as examples (among other conduct) “talking with one or more co-workers about your wages and benefits or other working conditions.”
While “wages” and “benefits” have been defined in a fairly consistent fashion over the decades since the NLRA was passed, the term “other working conditions” has not always been as easy to pin down. Traditionally, however, it has been read to encompass activities such as circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions and the like – issues directly connected to the workplace. Well, that traditional view is over.
According to recent public comments by newly appointed NLRB General Counsel Jennifer Abruzzo (as well as several general counsel memos issued earlier this year), the scope of employee behavior that will qualify as protected under the NLRA will now include political and social justice advocacy. In other words, First Amendment activities like participating in Black Lives Matter (BLM) protests or demonstrating in support of undocumented workers will now be protected under federal labor law, even if such activities have no connection to a particular employer’s workplace.
To be clear, this is not merely theoretical. Recently, the NLRB’s regional office in Minneapolis issued a complaint against a national home improvement retailer, alleging that it discriminated against employees who displayed the BLM slogan on their work uniforms and engaged in “other BLM-related protected concerted activity.”
The region’s decision to issue that complaint reflects Abruzzo’s announced goal of identifying cases to implement “doctrinal shifts” and expand employee rights. (See GC Memo 21-04 here.)
TAKEAWAY: Employers must carefully review their policies relating to political and social justice advocacy and tread carefully in disciplinary cases relating to such matters in light of the Board’s new expansive view of what qualifies as protected concerted activity.