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How to Determine Whether an Employee's Activity Is Protected Under the National Labor Relations Act (NLRA)

Author: Jed L. Marcus, Bressler, Amery & Ross, P.C.

The National Labor Relations Act (NLRA) protects the rights of employees, union and non-union, to engage in "concerted activity for mutual aid or protection" to improve their wages, benefits and working conditions. Protected concerted activity includes, even in the absence of a union, activity by employees on behalf of co-workers or interacting with others to achieve a common goal. It has been defined as any group action by employees for the legitimate furtherance of their common interests. Employees who work together to attempt and organize a workplace are protected from an employer's unlawful retaliation. This means that an employer cannot discipline or terminate an employee because he or she wants a union.

Determining whether an employee has engaged in protected concerted activity is not always easy. Sometimes the activity is protected but not concerted and sometimes the activity can be both protected and concerted but later loses protected status because of improper or illegal conduct by the employee. As a result, it is important to be able identify the various steps that the employer should follow in order to determine whether an employee's activity is protected under the NLRA.