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The hallmark of any mission-driven nonprofit is advocacy. No matter the industry or social cause, your organization is centered upon a desire to serve and support the public interest.
It is for this reason, nonprofits tend to employ highly driven, empathetic, and passionate individuals to accomplish those aims. While employees of this ilk are valuable and effective in aiding your mission, they also present unique management challenges when implementing and addressing workplace issues. There is a lesser-known area which you and other managers should be aware: protected concerted activity (PCA).
The National Labor Relations Act (NLRA or the Act) is a federal law that protects private-sector employees’ right to engage in two types of activities. First, the NLRA protects employees’ right to organize and engage in union activities. If you have ever heard of or dealt with the NLRA, it was likely in the context of a unionized workplace. However, the NLRA also guarantees employees the right to engage in other activities for “mutual aid or protection,” regardless of whether they are unionized. This is the foundational principle of PCA.
With staffs made up of passionate, cause-centered employees, it is particularly important for nonprofit leaders to recognize when their employees might be engaged in PCA and to appreciate the organizations’ obligations and rights under the NLRA when responding to PCA.
Ultimately, understanding PCA will help your organization meaningfully engage those individuals while avoiding legal pitfalls. Consider these three scenarios and imagine how you would handle each situation:
* Your entire staff decides to walk out of the facility to protest a coworker’s discharge, without calling off work or otherwise discussing the issue with management.
* Five employees approach you about whether the organization will support a local political candidate who advocates for climate-change policy, strongly suggesting that your failure to do so could hurt staff morale.
* An employee stands during a staff meeting, uses foul language to bad-mouth the organization for “playing favorites,” and storms out of the room, slamming the door.
Would you speak with the employee(s)? Would you issue discipline? Would you terminate? What facts would help you decide?
Now let’s delve into PCA. To qualify as PCA, the employee’s activities must involve both a protected topic and concerted action. “Protected” simply means that the activity relates to employees’ terms and conditions of employment, such as wages, benefits, schedules, safety concerns, working conditions, etc. For example, an employee complaining about workplace safety would involve a protected topic, whereas an employee making statements about which is the best type of cookie would not. If the activity is about a protected topic, then your ears should perk up.
“Concerted” refers to group action or complaints. For instance, four employees who approach a manager for more paid time off would involve concerted action because it involved more than one individual. In contrast, one person approaching the same manager to ask for a paid day off is not concerted. Moreover, to complicate matters, the NLRA has recognized two caveats that might extend the “concerted” label to individual action.
The topics of wages, work schedules, and job security are considered such vital terms and conditions of employment that these topics are inherently concerted, meaning that an individual’s action on these topics automatically checks the “concerted” box, regardless of whether it involved group action. Second, if an individual’s actions were a “logical outgrowth” of some earlier concerted action, then the individual’s actions retain the “concerted” label from the earlier action.
For example, if a group of employees complained to management about a safety issue, and later that day one of the employees — without discussing with the other employees — called a state agency about the safety issue, then the phone call could be considered a logical outgrowth of the earlier activity. It is important to recognize that group action, or action that stems from group activity, might involve PCA.
Understandably, you might be thinking that everything under the sun could be protected as PCA with such a broad scope. But the NLRA affords some rights to employers in this area. First, if the employee’s PCA was not a motivating factor in the company’s decision to discipline, then the underlying decision is not unlawful. Engaging in PCA is not a magical shield that will guard the employee against otherwise valid and lawful disciplinary action.
Further, an employee may lose the NLRA’s protections if the totality of the circumstances demonstrate that they were engaged in serious misconduct. For example, an employee who gets angry and loud with their supervisor when discussing a new policy in private is unlikely to have lost the NLRA’s protection. But if their outburst was in front of clients, the employee made threatening statements or gestures, or their conduct was meant to disparage the organization’s work product or services, then these additional elements could favor lost protection.
Of course, this is a nuanced, case-by-case analysis, and you should seek experienced legal counsel before deciding whether an employee’s otherwise protected conduct lost protection.
Finally, as with any violation of federal law, taking action against an employee for engaging in PCA can be costly. An employer who makes unlawful statements or threats towards an employee for engaging in protected activity might be required to post a notice to all employees disclaiming the statements and informing employees about their rights under the NLRA.
For more egregious action such as an unlawful discharge, an employer might be required by the NLRA to reinstate the employee and pay them backpay for lost earnings and interest. The price for violation can be high and significantly impact your organization’s operation.
Turning back to the scenarios, using your refined understanding of PCA, you can now see how each situation might not be as cut-and-dried as it may have originally appeared:
* Staff that concertedly withholds their services from the employer in support of a coworker are engaged in PCA. A group walkout over job security issues in support of a colleague is concerted and involves a protected topic.
* Employees coming to management in concert regarding an issue that does not relate to a work term or condition of employment are not engaged in protected concerted activity.
* The individual employee speaking out might be engaged in PCA because they solicited others’ support by raising the issue at a staff meeting, establishing concerted activity. The fact that the employee raised their voice, cursed, and angrily left the meeting may not have been enough to lose protection of the Act.
Protected concerted activity is a difficult topic to manage for most employers. On the one hand, you have every desire and intention of ensuring that employees enjoy the legal rights guaranteed them. On the other hand, you have a duty to maintain an orderly, harassment-free, and discrimination-free workplace. Striking the perfect balance can be tricky.
Here are a few key takeaways to assist you when making personnel decisions that may touch upon rights protected under the NLRA: unlawful statements or threats towards an employee for engaging in protected activity might be required to post a notice to all employees disclaiming the statements and informing employees about their rights under the NLRA.
For more egregious action such as an unlawful discharge, an employer might be required by the NLRA to reinstate the employee and pay them backpay for lost earnings and interest. The price for violation can be high and significantly impact your organization’s operation.
Turning back to the scenarios, using your refined understanding of PCA, you can now see how each situation might not be as cut-and-dried as it may have originally appeared:
* Staff that concertedly withholds their services from the employer in support of a coworker are engaged in PCA. A group walkout over job security issues in support of a colleague is concerted and involves a protected topic.
* Employees coming to management in concert regarding an issue that does not relate to a work term or condition of employment are not engaged in protected concerted activity.
* The individual employee speaking out might be engaged in PCA because they solicited others’ support by raising the issue at a staff meeting, establishing concerted activity. The fact that the employee raised their voice, cursed, and angrily left the meeting may not have been enough to lose protection of the Act.
Protected concerted activity is a difficult topic to manage for most employers. On the one hand, you have every desire and intention of ensuring that employees enjoy the legal rights guaranteed them. On the other hand, you have a duty to maintain an orderly, harassment-free, and discrimination-free workplace. Striking the perfect balance can be tricky.
Here are a few key takeaways to assist you when making personnel decisions that may touch upon rights protected under the NLRA:
* Employees have the right to engage in PCA regardless of whether they are members of a union;
* Your organization’s rules, handbook provisions, and other workplace policies are not dispositive of lawful discipline. If an employee is engaged in PCA, they do not lose the NLRA’s protection just by violating your handbook;
* PCA is not a simple numbers game. Even an employee acting alone can be protected by the NLRA;
The NLRA does not simply protect employees against the most egregious employer actions. Statements that may chill employees from engaging in protected rights may also violate the Act; and,
If there is any doubt about whether an employee you wish to discipline or discharge has engaged in PCA, or whether the employee has lost the Act’s protection by their actions, you should immediately contact experienced labor counsel.
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Joel R. White is an attorney in the Labor & Employment Department at Fox Rothschild. Formerly a senior field attorney with the National Labor Relations Board (NLRB), he represents a broad range of businesses in labor and employment matters. His email is jrwhite@foxrothschild.com.
