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Can You Tell the Difference Between Mere Employee Griping and Legally-Protected Activity? A Recent NLRB Ruling Provides Some Guidance

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Chad Willits

Cincinnati Employment Newsletter
March 2019

At some point, even the most conscientious employer will receive employee complaints. Often, these can present an opportunity to identify a problem or address a concern before it spreads. However, some employee complaints and related conduct can become disruptive or escalate to the point where discipline is warranted. Since certain complaints can qualify for legal protection however, it is important to distinguish between genuine “concerted” – and therefore protected – activity, and misconduct that is subject to discipline. 

It can be difficult to distinguish between the personal gripe of a single worker and a substantive concern raised on behalf of a group of employees. A prior ruling from the National Labor Relations Board (“NLRB”) made the distinction even more challenging when it held that any employee complaint raised in a meeting or group setting was necessarily protected, no matter how narrow or individualized the concern. Fortunately, a new decision issued last month overruled that prior decision and clarified the standard. 

By way of background, the National Labor Relations Act is a federal statute that regulates collective activity, relations between labor unions and employers, collective bargaining, and unfair labor practices. Section 7 of the Act guarantees certain employee rights, including the right to form, join, or assist labor unions, bargain collectively, and importantly to engage in other concerted activities for mutual aid or protection. The NLRB is the federal agency responsible for interpreting and enforcing the Act.   

Although it focuses largely on union-related issues, the Act actually applies to all private-sector employers, and makes it unlawful to interfere with the exercise of these employee rights, even if there is no union involved at all. For companies that are not accustomed to dealing with unions, it is easy to overlook the fact that even non-unionized employees have the right to communicate and act collectively to address the terms and conditions of their employment, like compensation, benefits, working conditions, and safety.  

In the 2011 case of WorldMark by Wyndham, the Obama-era NLRB held that any employee who publicly protests in a group meeting is necessarily inviting “group” action, and is therefore automatically engaged in legally-protected activity. Following that ruling, many companies complained the WorldMark decision eliminated any aspect of group involvement and expanded these protections beyond the “concerted” activities contemplated by the Act.  

Last month, the NLRB overruled WorldMark and clarified this standard in the case of Alstate Maintenance & Trevor Greenidge. Greenidge was a skycap at Kennedy International Airport who was fired after he refused to assist a foreign soccer team with luggage. Beforehand, Greenidge had complained – in the presence of a supervisor and three co-workers – that the team would likely tip poorly based on a prior negative experience. 

The NLRB held that Greenidge’s individual griping did not constitute protected activity simply because other workers were nearby when he made the remark. It clarified that in order to be legally protected, the activity must be both “concerted” and “for the purpose of mutual aid or protection.” To qualify as “concerted,” the complaint must be raised on behalf of other employees, not simply for the benefit of the individual worker himself. Although statements by a single employee can be protected where the worker is serving as a designated spokesperson for others, there must be some group activity, group complaint, or an effort to induce group action, beyond a simple individual slight. The NLRB found that, although co-workers were nearby, Greenidge was not raising the issue on their behalf. Likewise, he was not making the statement to advance the employees’ mutual aid or protection. Since the employer had no control over how well customers might tip, Greenidge was not seeking to change any employer practice or policy for the benefit of himself or his coworkers.  

In general, employers are wise to take every employee complaint seriously, while maintaining the ability to address truly disruptive behavior. When determining whether a circumstance involves a mere gripe or legally-protected, concerted activity, employers must listen carefully, as details matter. If an employee is addressing an individual situation or speaking only on their own behalf, the NLRA and its legal protections are likely not triggered. However, where a worker raises an issue in the context of a larger meeting, the issue is likely to impact many employees or some broader policy or practice, or there is some indication that a group of employees have already discussed the issue, an employer must proceed more cautiously. 

While the Alstate Maintenance ruling provides a clearer standard on this issue, always consider consulting qualified employment counsel or a HR professional before making a decision that could expose your organization to liability.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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