by Steven E. Abraham
The National Labor Relations Act applies to most businesses. But many employers assume that the NLRA is largely irrelevant to them if their employees are not represented by a union. This is not entirely true. The NLRA provides significant protections for non-union employees as well.
Section 7 of the NLRA states:
“Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….”
Therefore, if a business is not unionized, Section 7 protects employees’ rights to join unions, campaign for unions, etc. And according to the Supreme Court, Section 7 protects employees’ rights to do things such as discuss unionization while at work, distribute union literature, wear union buttons, etc. Therefore, businesses must be careful before trying to stop employees from discussing unions, even if the discussions are taking place at work and the employees are working.
In addition, Section 7 provides protections for nonunion employees even if they are not attempting to organize/form a union. The words “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” is key.
According to the Supreme Court, activity is “concerted” as long as more than one employee is involved. And “other mutual aid or protection” includes anything related to employment. Therefore, as long as more than one employee is involved, any activities they undertake would be protected by the NLRA, as long as those activities relate to their employment.
Furthermore, activity can be considered “concerted,” even if only one employee is involved, if the employee is acting as a spokesperson for others. So, for example, if several employees have a complaint about something related to work and they all decide that one of them will bring the complaint to management, the activity would be considered concerted, even though only one employee actually raised the complaint.
Consider the following scenarios:
Several employees feel they are underpaid and bring the concern to the manager as a group. This would be protected concerted activity.
A group of employees refuse to operate machinery they feel is unsafe. This would be protected under Section 7.
A group of employees circulate a petition requesting remote work flexibility. This would be protected concerted activity.
Employees gather to express frustration about their supervisor and raise their concerns to HR. This is likely protected.
In today’s digital age, employee complaints or discussions often occur online, especially on social media. Courts and the NLRB have consistently ruled that certain online discussions—such as a Facebook post complaining about work conditions or pay—can be considered concerted activity if they involve or seek the involvement of other employees.
An employee who posts on Instagram about work and tags coworkers to solicit their opinions is likely engaging in protected concerted activity. Employers who discipline employees for such conduct may be violating federal law, even if the posts are critical or harsh.
Employers unfamiliar with Section 7 might interfere with employees’ rights. Here are common mistakes:
• Prohibiting employees from discussing wages or benefits.
• Disciplining employees for organizing or signing petitions.
• Banning negative comments about the company on social media.
• Retaliating against employees who raise group concerns.
• Enforcing overly broad rules that chill collective discussion.
To reduce legal risk and promote a positive workplace culture, non-union employers should train managers and supervisors to be aware of Section 7 and the protections it provides for employees. Also, they should review employee handbooks and policies to make sure they do not contain language that could be interpreted as preventing employees from exercising their Section 7 rights.
Most non-unionized businesses are just as bound by Section 7 as their unionized counterparts. Failing to understand this fact can expose businesses to legal liability, employee dissatisfaction, and potential unionization efforts.
Ultimately, respecting employees’ rights to engage in concerted activity is not just a legal requirement, it is a fundamental part of creating a workplace where employees feel heard, respected, and empowered. For modern employers, embracing these principles is not only good compliance but also good business.
Steven E. Abraham is a professor in the school of business at SUNY Oswego. He also has practiced labor and employment in New York City.
