Determine Whether a Non-Union Employee's Activity Is Protected Under the National Labor Relations Act

  • In addition to protecting union employees, the federal National Labor Relations Act (NLRA) also protects non-union employees who engage in protected concerted activity aimed at improving wages, benefits or other terms and conditions of employment.
  • A non-union employee's activity is protected only if the employee acted together with other employees. For instance, discussions between non-union employees about wages or safety conditions are protected under the NLRA. An employee who acts alone on behalf of others regarding a term of employment is also protected, but an individual's gripes or complaints are not protected.
  • Be extremely cautious when determining whether to discipline non-union employees for social media activity. Such posts may be protected by the NLRA if they address terms and conditions of employment. An employer may argue against the protected aspect of a social media post by proving that it was malicious, reckless or false.

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