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What is defined as protected activity?

Workplace Retaliation and Protected Activities

Many employees who are either discriminated against in the workplace, face unsafe working conditions, or work for wages that are too low compared to others in their fields often wonder what they can do to create change in their workplaces. In an age where unions hold less sway and where workplace abuses happen more frequently in small businesses, employees often view themselves as powerless to raise their concerns to employers. Not true. Under the National Labor Relations Act (NLRA), which is a Great Depression era workers’ rights law, all employees have certain organizational rights, whether or not there are members of a formal labor union.

The Definition of Protected Activity Under the NLRA

The NLRA was designed to protect workers by giving them the ability to organize and protest unfair employer practices or low wages without fear of being fired. Under Sections 7 and 8 of the NLRA, employees are entitled to engage in “protected concerted activities” without being fired or retaliated against in any way. Specifically, Section 7 grants all employees the right to unionize if they so choose and Section 8 allows employees to engage in activities aimed at improving worker conditions.

Fortunately, the definition of protected concerted activity is quite broad. Under the NLRA, a protected concerted activity is any activity engaged in by two or more employees to try and improve working conditions. The improvements sought can take the form of higher pay, better working hours, safer working conditions, or reduced workload. In some cases, the activities of only one employee can be considered protected concerted activity if the employee either involves other employees or is acting on behalf of a group of employees.

Examples of Protected Concerted Activity

The textbook example of a protected concerted activity is a workers’ strike; however, a strike is not the only type of concerted activity that employees are allowed to engage in. In fact, any protest, whether formal, informal, loud, quiet, large, small, noticeable, or private can be considered protected concerted activity. For example, a posted notice board voicing employee concerns or discussions about working conditions or pay can all be considered protected activities.

One recent example that involves the use of modern technology can help illustrate the extent of the broad scope of Section 8 of the NLRA. Employees who send pictures of unsafe working conditions back and forth to each other on social media and discuss solutions to those problems are engaging in a protected concerted activity. Similarly, gathering on social media and forming online groups on platforms such as Facebook to discuss workplace concerns is also considered protected activity.

What to Do if an Employer Retaliates or Bans Concerted Activity

Under the NLRA, employers must permit employees to engage in concerted activities that can help improve working conditions. If an employer illegally retaliates against employees engaged in protected activities, then the employees can look to the National Labor Relations Board (NLRB), a federal agency tasked with regulating employers and enforcing the NLRA, for assistance. Additionally, employees can hire an attorney to help protect their right to engage in concerted activity in the workplace.

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