Some employees may not realize the full scope of the protections that they have when trying to improve their working conditions. Workers are protected not only in connection with union activities but also when joining with their fellow workers to improve their work lives. Even people who are not represented by a union are entitled under Section 7 of the National Labor Relations Act (NLRA) to self-organize and join together with coworkers to help improve things at work. Under the NLRA, you can act together with other employees, regardless of the involvement of a union.
Even if you do not join a union, you have rights under the NLRA. You are entitled to engage in "concerted activity." "Concerted activity" is not defined in the NLRA, but courts have interpreted it to refer to Congress' intent to equalize an employee's bargaining power with the power of his or her employer. Generally, concerted activity is activity undertaken by two or more employees in order to achieve mutual aid or protection regarding employment terms and conditions.
Concerted activities = activities by two or more employees related to improving wages or working conditions
Concerted Activity by Single Employees
Even a single employee may be considered to be engaging in protected concerted activity if he or she acts on the authority of other employees in bringing complaints before an employer, trying to instigate group action, or trying to prepare for concerted activities with other employees. For example, you are entitled to talk to one or more coworkers about improving your wages and benefits, and this is a protected concerted activity. You can circulate a petition at work asking for better safety protections, and this is also a protected concerted activity. You can join with workers to participate in a concerted refusal to work in conditions that violate OSHA regulations. You can join with your coworkers to speak with your employer or a governmental agency about problems on the job.
You are likely covered by the NLRA if you are in the private sector. The NLRA excludes people employed by local, state, or federal governments. It also excludes people who work as agricultural laborers and people who work in the domestic service of any family or person in their home. The NLRA also excludes people working for a parent or spouse and people working on an independent contractor basis. It further excludes people working for any employer covered by the Railway Labor Act. It also excludes people working for someone who does not meet the definition of an employer set forth under the NLRA.
Protections Against Retaliation
Your employer is not allowed to terminate you, threaten you, or discipline you for engaging in protected concerted activity. It cannot use coercive questioning or interrogation to gain information about the protected concerted activity. However, you are not protected if you do something that is egregiously offensive or knowingly or maliciously false, or if you publicly disparage your employer's services or products without relating your complaint to a labor dispute. If you have been terminated, suspended, or penalized for engaging in protected concerted activities, the NLRB will try to restore anything that was illegally taken away.
The NLRB has taken an expansive view of claims. In fact, in one case, it found that an employee engaged in a protected concerted activity when she spoke to her coworkers about one episode of sexual harassment that was apparently directed only at her. The majority also stated that it did not matter whether she thought that she was engaged in a protected activity or not.
Going It Alone
Actions of a single employee to improve wages or working conditions may be considered “concerted” if the person is acting on behalf of other people or he or she involves co-workers before acting.