Speaking Up or Speaking Out: A Review of Protected Concerted Activity
by Vita, on September 7, 2017
The terminated Google employee, James Damore, who wrote an internal document expressing concerns over Google’s diversity program and practices sparked a lot of discussion in the media, on social media, and in the workplace. The document, which was shared among Google employees, expressed the employee’s opinion that Google’s attempts to create equal representation in employment for all sexes and races is premised on bias, results in discriminatory practices, and creates a culture of intolerance for those with different ideologies.
In early August, Mr. Damore filed a complaint with the National Labor Relations Board (NLRB) against Google for violating Section 7 (§7) of the National Labor Relations Act (NLRA). This section of the act protects employees’ rights to act together to improve their pay and working conditions, with or without a union. This is known as protected concerted activity.
What this means for employers is that employees have a right in certain situations to speak out to improve the workplace. When they do so, §8(a)(1) of the NLRA prohibits employers from infringing on those rights by trying to interfere, restrain, or coerce employees.
While there is no crystal ball to determine the outcome of Mr. Damore’s claims, it is important for employers to understand how to recognize protected concerted activity to avoid a potential labor law violation.
Is the activity concerted?
While in many cases concerted activity occurs among two or more employees, an individual employee may also engage in concerted activity. An employee’s actions are concerted if the employee is acting on the authority of other employees, bringing group complaints or recommendations to improve pay or working conditions to the employer’s attention, intending to induce group action, or seeking to prepare for group action. Employers should consider whether the individual’s objective could be for any of those actions. If that’s the case, the activity is protected.
Whether an employee’s actions alone will amount to concerted activity depends on the situation and facts. In the case of Google’s Mr. Damore, he wrote a document to other Google employees expressing his opinions about Google’s diversity initiatives and why they may be discriminatory. Whether the activity was concerted is unclear based on the limited facts available. For example, it is unclear if he acted alone, discussed these ideas with other employees before drafting his document, or wrote the document with the intention of enlisting the support of other employees to raise the issue to Google management. Historically, the NLRB has weighed whether an individual’s activity seeks to initiate or induce group action or is somehow related to group action to benefit employees.
In other cases, individual employees have been successful in establishing concerted activity for seemingly “independent” issues. For example, one employee successfully raised a §7 claim against an employer when the employee believed she was sexually harassed in an open meeting. She asked fellow employees to help her by signing a piece of paper to witness or support her allegations. The act of having fellow employees sign a document that would be used in a claim against the employer was determined to be “concerted” activity. Fresh & Easy Neighborhood Market, Inc. & Margaret Elias, 361 NLRB No.12 (2014) (“Fresh & Easy”).
Was the purpose of the activity for mutual aid and protection?
In addition to being concerted activity, an activity must be for mutual aid or protection to be protected. This criteria means that an employee isn’t raising a personal issue or complaint that would not otherwise benefit other employees. There must be a tie between the issue the employee raises and general workplace concerns or employee interests, such as working conditions, hours, or pay.
Even if the complaining employee is the only individual who will benefit from the outcome, the activity meets the requirement if the employee seeks the assistance of other employees and a trickle-down effect within the workplace may result. For example, in Fresh & Easy, only the complainant benefitted from her sexual harassment claim, but the NLRB determined that soliciting assistance from co-workers to raise her issue to management met the mutual aid and protection requirement. The rationale was that addressing issues for one employee could result in a change in policy that would positively impact other employees in the future.
In Mr. Damore’s case, his document suggests certain actions the company could take to make diversity initiatives non-discriminatory. His suggestions may benefit more than one employee.
Is the activity protected?
Not all employee activity is protected under §7 of the NLRA. According to the NLRB, an employee’s actions can cross the line and lose protection, particularly if the activities are egregiously offensive, the employee knowingly and maliciously makes false statements, or the employee disparages the employer’s products and services unrelated to an actual labor concern or issue.
More recently, this issue has arisen in several cases where employees have lost their jobs over public comments about employers or management on social media. As a result, the NLRB General Counsel issued additional guidance in 2012. Several factors are considered in these cases to determine whether the protections are lost, including the nature of the statements and the forum for the statements.
In the case of Mr. Damore, while his opinions and conclusions are controversial, the NLRB must determine if the document disparages Google and whether it appears egregious and malicious in its intent.
It is important for employers to understand how to identify potentially protected concerted activity and recognize that employees have a right to engage in such activity. Knowingly disciplining or terminating employees engaged in protected concerted activity or discouraging them from engaging in such activity could result in liability for an employer. Employers are encouraged to consult with a labor attorney before taking action against an employee whose activities may be protected under the NLRA.