Concerted Activity Under the National Labor Relations Act During Covid-19

Enacted in 1935, the National Labor Relations Act (NLRA) protects the rights of employees and employers. The NLRA encourages collective bargaining and aims to protect the welfare of workers and businesses from certain damaging employment practices.

The NLRA is enforced by the National Relations Labor Board (NLRB). This federal agency protects employees and employers from unfair labor practices, including by investigating any complaints and charges related to unfair labor practices. The NLRB is made up of five members who are appointed by the President. Unfair labor practice charges initially are heard and decided by Administrative Law Judges within the agency.

While the NLRA protects most employees, employers, and unions within the private sector of the economy, it excludes certain types of employees. This includes public employees who work for the state and federal agencies and governments, agricultural and domestic workers, airline workers and rail carriers, independent contractors, and those employed by a parent or a spouse.

The NLRA offers certain rights to employees, including:

  • The right to form and join a union
  • The right to decline participation in a union
  • The right to participate in protected strikes, pickets, and protests
  • The right to participate in concerted activity, including in cyberspace

What Is “Concerted Activity” Under the NLRA?

Generally, the NLRA protects employees who engage in union activity. However, the law also protects those employees who are not represented by a union but choose to collaborate with coworkers to improve workplace conditions and their welfare at work.

“Concerted activity” is activity in which two or more employees take action for a mutual benefit such as aid or protection that concerns the conditions of their employment. As an employee, you have the protected right to participate in “concerted activity.” This includes the right to unite with your coworkers to talk about work-related issues regarding the following:

  • Wages and benefits
  • Working conditions
  • Circulating petitions for things like better hours and ways to improve life at the workplace
  • Considerations involving the refusal to work until unsafe working conditions are addressed
  • Communicating directly with employers and government agencies

When you engage in the above activities, your employer is prohibited from disciplining you and other employees. Additionally, your employer is prohibited from discharging you from employment, threatening and harassing, and coercively questioning you about the concerted activity that you participate in with your coworkers. Contacting The Noble Law’s workplace harassment lawyer can help guide you through such siutations.

While concerted activity is that in which two or more employees engage in activities to address workplace conditions and life at work, single employees can engage in the same “concerted activity” and have those same protections under the NLRA. However, if you as a single employee engage in any protected concerted activity, you must be acting on behalf of other employees. This includes bringing complaints of the group to an employer’s attention, trying to encourage coworkers to engage in group action like strikes and pickets, and working to prepare for group action.

The protections applied to single employees acting under the authority of coworkers can be lost. Engaging in highly offensive activity, publicly deprecating the employer’s products or services without relating any complaints to the labor board, and making statements about the employer that are knowingly and maliciously false are activities that are not protected under the NLRA.

Protected Concerted Activity During the Covid-19 Pandemic

During the Covid-19 pandemic, your right to engage in protected concerted activity applies to that activity concerning the transmission and prevention of the virus. Examples of protected concerted activity during the Covid-19 pandemic include:

  1. An employee tests positive for the Covid-19 virus. You and other employees don’t feel safe working in an environment where there is or has been a high likelihood of exposure to the virus. You and other employees walk out in protest of the unsafe working conditions created by your employer, who continues to require you to work within the office or area in which you were exposed. The NLRA protects your right to walk out, however, your employer may fix the issue by employing routine sanitation efforts in accordance with CDC and other agency protocols.
  2. Your employer does not listen to you and other workers regarding your concerns about the Covid-19 virus and unsafe working conditions. As a result, you and your coworkers form a union. The NLRA protects the formation of the union to cooperate with each other and your employer to address the issue of the virus in the workplace.
  3. You and your coworkers are concerned about the virus in the workplace but don’t wish to lose out on pay and benefits as a result of not coming into the workplace. The NLRA protects your right to demand policies and plans to identify areas in which the risk of exposure is high and ways to minimize the risk of exposure in transmission. Additionally, your right to demand new policies that require sick employees to remain at home without losing pay or benefits is protected.
  4. You and your coworkers come to your employer with your concerns regarding the risk of exposure and the protocols in place to prevent transmission. Your employer threatens to fire any employee who comes to him with these concerns in the future. The NLRA protects you and other employees from being disciplined or terminated by your employer for voicing these concerns, and the NLRB may be contacted to investigate these threats.
  5. After discussing your concerns with coworkers and finding that they share the same concerns, you speak to your employer on behalf of the others. Even though you are the only employee bringing your concerns to the employer, the NLRA provides that this is protected concerted activity for which you cannot be punished.

Have Your Rights Under the NLRA Been Violated By Your Employer?

If you have been reprimanded for unionizing or otherwise engaging in protected concerted activity under the NLRA, call the employment law attorneys at Noble Law. Our attorneys will review your case and determine whether your rights as an employee have been violated. We provide consultations in our offices in New York and North Carolina and remotely through videoconferencing. Call the Charlotte office at 704.626.6648, the Triangle office at 919.251.6008, or the New York office at 212.662.6500. Additionally, you can schedule your consultation for New York and North Carolina through our site.

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