Protected Concerted Activity

The National Labor Relations Board (NLRB) recently decided that employees must presumptively be permitted to use their employer’s e-mail system, during non-working time, to communicate with each other about workplace issues, including but not limited to union organizing efforts.
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Stop me if you have heard this one, an employee was upset about his pay rate…

Seriously, an employee upset about his pay was at the heart of a recent decision issued by the National Labor Relations Board that explored the protections afforded by the National Labor Relations Act (“Act”). The employee in question was hired to perform waterproofing duties on a project at a university in Ohio. The project was a public project, and therefore, it was covered by the applicable prevailing wage laws. The employee, however, was not happy about the prevailing wage rate that he received on the project, and essentially complained about his wage rate throughout the entire time he spent working on the project. In fact, as the foreman testified, the employee complained about basically everything during his brief tenure with the employer.
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We previously reported that a National Labor Relations Board Administrative Law Judge issued an interesting decision involving an employee who was discharged for posts he made on his Facebook page. In that case, the ALJ found that the employee was not discharged in violation of the National Labor Relations Act, because even though some of the employee’s Facebook posts were protected, the employee’s termination was based on only non-protected posts. Recently, the Board upheld the ALJ’s decision, providing helpful guidance to employers on the limits of the NLRA’s protections.
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The National Labor Relations Board’s (“NLRB”) aggressive campaign to educate non-union employees about their rights under the National Labor Relations Act (“NLRA”) is in full swing.

In addition to the mandatory notice posting requirement that will go into effect for all employers on April 30, the NLRB recently announced its plan to launch a new website designed to educate both union and non-union employees about their rights under the NLRA. These rights include the rights to discuss working conditions and to present grievances to their employers. Under the NLRA, employees have a right to engage in such “protected concerted activity,” even when they are not union employees or involved in union organizing efforts.
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