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Question: How should an employer handle an employee who is speaking to other coworkers about forming an employee group to file an employment complaint or lawsuit? What are the rights as a company to address this employee through work reassignment, discipline or termination?

Answer: Consider any employment-related actions you make with employees engaging in groups discussing working conditions very carefully and consult with your labor counsel first.  Here’s why:  The National Labor Relations Board (NLRB) has increased its involvement in the enforcement of the National Labor Relations Act (NLRA) and its protections for all employees, in both the union and non-union sectors.  This is especially true in the definition and enforcement of Section 7 of the NLRA in the area of “protected concerted activity.”

The NLRA makes it illegal for employers to interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the NLRA. This Section specifically grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection.” 

Traditionally, protected concerted activity involved two or more employees banding together to improve working conditions.  In recent cases it has been construed to include an employee seeking the support of other employees to improve or seek redress regarding work issues – similar to what you describe is happening here.   However, if the employee behavior is reckless or malicious, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, it may cause concerted activity to lose its protection.

Discriminatory employer actions prohibited by the NLRA could include:

Closing and then relocating a plant because the employees at the first location elected to be represented by a union.  (Reassigning employee work locations could be seen as an action to thwart this protected activity).

Disciplining two or more nonsupervisory nonunion employees who together request changes in their terms or conditions of employment.

Disciplining employees for talking to each other about salaries or wages.

(The last two are often referred to as “chilling” an employee’s right to concerted activity).

What You Can Do:

Arrange a meeting and listen to your employee’s (or the group’s) concerns to determine whether or not you can turn this into a positive, workable solution for both the employee(s) and the company.

If a direct meeting does not seem feasible, you could arrange for your entire employee group to participate in an attitude/climate survey. If you allow anonymity, perhaps you will get feedback that will help you better understand and resolve the concerns your team members have.   Please note, however, that if you do a survey, your employees will be expecting feedback and results.  Not following through could create more employee relations tension.

If the employee’s (or group’s) current behavior is impeding work productivity or the conversations are being held in your public areas where customers or others may overhear during normal work hours, you can remind the employees involved of your standards for work productivity and customer service and hold them to the same standards as are expected of all employees.

Consult with your legal counsel prior to taking any employment action that may appear to violate the provisions of the NLRA.  Exercise caution, try a positive employee relations communications effort, and focus on the behaviors you want to change and whether that may be defined as “prohibited conduct” to mitigate employment practices liability for your organization.

For more information about how the NLRB is managing issues related to “protected concerted activity” and related court cases defining those issues, visit the NLRB website at:

http://www.nlrb.gov/rights-we-protect/protected-concerted-activity.