Employment & Labor Insider

Most employers and Human Resources professionals know that employees have the legal right to make internal complaints about discrimination, harassment, compliance with wage-hour laws, workplace safety, and so on. Meaning that you can’t take any kind of “adverse action” against an employee because the employee engaged in these activities.

Heck, you can’t even take action against an employee because the employee filed a charge against you with the Equal Employment Opportunity Commission, or filed a lawsuit.

But there is one more type of legally protected activity that often escapes employers’ consciousness.

Watch your step!

Protected concerted activity.

“PCA,” as the labor lawyers call it, is protected under the National Labor Relations Act. Because the NLRA is a labor law, many non-union employers think it doesn’t apply to them. Assuming they think about it at all.

That’s too bad, because that lack of knowledge is why non-union employers are likely to get nailed for violations.

A decision this week from the U.S. Court of Appeals for the District of Columbia Circuit -- involving a non-union company and some IT employees making close to $100,000 a year -- should make a believer out of you.

IT makes a stink

Our employee (we’ll call him “Milton”) was a software engineer for a company that was going through a restructuring. Milton’s job was safe, but his role was going to change and he was not happy about it.

He had some discussions with his bosses about the change, and the discussions did not go well. After talking with the bosses, he vented to a co-worker (we’ll call him “Kale”).

Kale asked Milton how much he was being paid. Milton told him $95,000 a year. Kale said he was getting $8,000 a year less than Milton (for us math-challenged, that would be $87,000). Milton suggested creating a spreadsheet so that the software engineers could enter their annual salaries and compare. The company had four software engineers, including Milton and Kale.

So Milton created a spreadsheet with his name and salary, Kale’s name and salary, and the names of the other two engineers. They sent the spreadsheet link to the other two, who filled in their annual salaries.

Milton or someone else noted on the spreadsheet that 100 percent of the software engineers were “underpaid.”

One day around 9 a.m., management held a meeting with employees about the restructuring. Either during or after the meeting, somebody sent the spreadsheet link to someone outside the four-person software engineer group. Twenty-some employees entered their names and salaries that morning.

You can probably figure out the rest. Somebody in the group showed the spreadsheet to a supervisor. The supervisor showed it to the Director, and the Director showed it to the Operations Director. The Operations Director showed it to the Chief Financial Officer, who had a fit. This was around 11:30 a.m. on the day of the meeting.

At 11:32 a.m., the company remotely cut off Milton’s access to the system.

By noon, the company had wished Milton all the best in his future endeavors.

"Things happen so quickly around here."

Although he was not a union employee, Milton filed an unfair labor practice charge with a regional office of the National Labor Relations Board. His case was tried before an Administrative Law Judge, who found that Milton was unlawfully terminated for engaging in protected concerted activity. The NLRB affirmed. Then the employer asked the D.C. Circuit to review the NLRB decision. This week, a three-judge panel of the D.C. Circuit found in favor of the NLRB (and Milton).

Please note the following:

• Milton was not a factory worker. He was a white-collar software engineer.
• No union was involved.
• Milton was making $95,000 a year.
• Despite all of the above, Milton still had a valid claim under the NLRA. 

“Protected concerted activity” for dummies

You are not dummies, dear readers! But if you are non-union, you may not be familiar with this law, and you need to be.

Section 7 of the NLRA addresses the rights of non-supervisory employees to organize, to form or join unions, and to collectively bargain. Buried at the end of the section is this:

“and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ..”

(Emphasis is mine.)

As this has been interpreted, it protects all non-supervisory employees* -- whether they are members of a union or not -- who address terms and conditions of employment . . . 

• . . . as a group (The four software engineers said to their bosses, “We are 100 percent underpaid!”).
• . . . on behalf of a group (Milton said to his bosses, “The software engineers have authorized me to let you know that they are upset because they are 100 percent underpaid!”).
• . . . when preparing for group action (Milton said to the software engineers, “Hey, let’s present this spreadsheet to the CFO and demand a raise because we are 100 percent underpaid!”).

And “terms and conditions of employment” is every bit as broad as it sounds. Pay is fairly obvious, but it could include something as seemingly trivial as “The break room is always nasty. We think that the company should hire a different cleaning service.”

*Even supervisors are protected in limited circumstances.

A true story that will blow your mind

Just to give you an idea about how broad this protection is, a few years ago the U.S. Court of Appeals for the Second Circuit found in favor of an employee who was fired for posting this on Facebook about his supervisor:

“Bob is such a NASTY MOTHER F**KER don’t know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”

(Caps and exclamation points in the original. Asterisks inserted by me. The original spelled out all of those bad words.)

Moral of the story

So, when you are thinking about terminating an employee for being "high maintenance," a “squeaky wheel,” or “more trouble than he’s worth,” be sure you take into account whether the employee’s conduct is protected concerted activity within the meaning of the National Labor Relations Act.

"Let's see . . . we've ruled out protected activity under Title VII, the ADEA, the ADA, the FMLA, OSHA, the FLSA, workers' comp law, and all state and local employment laws. Why do I feel like we're still missing something?"

Even if you’re non-union.