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

  • In addition to union employees, the National Labor Relations Act also protects non-union employees who engage in "protected concerted activity" aimed to improve wages, benefits or other terms and conditions of employment. Employees do not have to be involved in union-related activity to be protected under the NLRA.
  • In order to determine whether the activity is protected, the non-union employee must have acted together with other employees. For instance, discussions between non-union employees about wages or safety conditions are protected under the NLRA. Note, that an employee who acts alone but acts on behalf of others regarding a term of employment is also protected. However, individual gripes or complaints are not protected
  • Employers must be extremely cautious when determining whether to discipline employees for social media activity as it may constitute protected activity. Non-union employees may be protected under the NLRA if their social media post addresses terms and conditions of employment. Employers may argue against the protected aspect of the social media post by showing that it was malicious, reckless or false.

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