Employers in Maryland and Washington, D.C. face complex legal challenges. This guide explains key employment law concepts and how businesses can protect themselves.

When Complaints Become Protected: A Practical Guide to Concerted Activity

By: AJ Esral, Esq.

Here’s an everyday scenario for your consideration:

A company issues its annual merit-based raises to all its employees. Two employees are overheard discuss their bonuses in the breakroom, with one wondering out loud why the other got more than he did. The boss finds out about the conversation and disciplines the two employees, pursuant to the well-circulated handbook policy stating that wage information is “confidential.”

What do you think? Did anything illegal happen in this scenario?

The answer is an unequivocal yes. That boss has, unfortunately, opened the company to a substantial risk of legal liability for a seemingly common workplace occurrence. This is true even though the employees in question are not a member of a protected class, not a member of a union, and were, in fact, on notice about the policy in question. No matter.

The answer is an unequivocal yes. That boss has, unfortunately, opened the company to a substantial risk of legal liability for a seemingly common workplace occurrence. This is true even though the employees in question are not a member of a protected class, not a member of a union, and were, in fact, on notice about the policy in question. No matter. (Most people have never even heard of it.) Yet it is one of the most frequently violated areas of employment law, and one that applies to every workplace, so here’s the quick breakdown for you.

In a nutshell, an employee has the right to take action with other employees to improve their wages, benefits, or working conditions. When that happens, the employees’ employer may not take any retaliatory actions toward them; he may not fire, discipline, or even threaten to discipline them for their actions.

Here are those same three words, each defined individually:

Protected: Employees’ rights to engage in “concerted activity” (defined below) is protected by the National Labor Relations Act. Violations are investigated and litigated by the Regional Director of the National Labor Relations Board, and remedies can include reinstatement, back pay, posting of notices, and an injunction; Concerted: When employees act together or on behalf of others, which can include two employees talking or one employee trying to initiate group action (e.g., circulating a petition), concerning the terms and conditions of their employment, including pay, schedule, overtime, staffing levels, workload, harassment reporting, or benefits; Activity: This includes complaints, petitions, walkouts, strikes, and even social media posts involving workplace concerns.

Importantly, even when an employee engages in conduct that might otherwise be labelled as insubordination, such as profanity, disrespect, or outbursts, this conduct often will be overlooked if he was engaged in protected concerted activity at the time.

Here are three relatively recent examples of protected concerted activity cases:

Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023): In Stericycle, the NLRB adopted a tougher standard for evaluating workplace rules, holding that an employer policy is presumptively unlawful if employees could reasonably read it as chilling their Section 7 rights to discuss wages, working conditions, or act together regarding workplace concerns (such as a policy banning “behavior that is harmful to Stericycle’s reputation”). The burden now shifts to the employer to prove the rule advances a legitimate and substantial business interest and is narrowly tailored so it does not unnecessarily interfere with protected activity.

NLRB v. Pier Sixty, LLC, No. 15-1841 (2d Cir. 2017): In Pier Sixty, an employee posted a profanity-laced Facebook message insulting his supervisor and ending with “Vote YES for the UNION!!!!!!” The employee was fired shortly thereafter. The Second Circuit court held that while it was on the “outer bounds” of protected speech, it still was not so egregious as to lose Section 7 protection.

Brynn Marr Hospital, Inc., JD-72-25, 10-CA-328533 (ALJ Decision): A nurse was fired for posting on Facebook about a “vendetta” she had against one of the hospital leaders. The administrative law judge found that the post concerned legitimate workplace issues, did not contain threatening language, and represented the concerns of a group, not merely of herself, and therefore ordered for the nurse’s reinstatement.

I’ll leave you with three things you can do to protect yourself:

First, review your policies. Badly drafted or implemented policies are the surest way to fall prey to a Section 7 complaint. See if any policies reasonably can be read to prohibit employees from talking about wages, schedules, or safety concerns with each other. Second, pause before discipline when the issue involves working conditions. Is this a group activity or on behalf of others? Is the problem the employee’s conduct, or the substance of what they’re complaining about?

Third, train your supervisors to look out for this sort of behavior before starting on discipline. Don’t ever threaten job loss or promise benefits to prevent employees from organizing or complaining together.

And keep in mind that Section 7 rights still apply, even if the employee is:

Non-union Rude, or Acting alone, as long as the employee even is trying to involve coworkers.

As always, if you would like us to prepare or review your company’s employee handbook to make sure it complies with Section 7 of the NLRA and all applicable laws, or if you have Section 7-related questions, just shoot an email to aj@luchanskylaw.com, and we will be happy to assist you.

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