Protected Concerted Activity Hiding in Broad Daylight
In a newly launched series, we will review and highlight protected activity under the National Labor Relations Act (“NLRA”) that can impact employers in the private sector. If you are not aware, the NLRA applies to private-sector employers. Further, the NLRA prohibits employers from restricting employees from engaging in various communications to third parties or each other about their work conditions – irrespective of whether the employee is a union member. This blog is intended to highlight activities that the National Labor Relations Board views as protected concerted activities. Still, they may be easily overlooked by a private sector employer who does not have a unionized workforce.
As most private sector employers and their Human Resource Departments know, the Fair Labor Standards Act (“FLSA”) salary threshold is scheduled to increase again on January 1, 2025, to $1,128 weekly. As employers increase salaries and discuss this new threshold with employees, the employee may have questions or pushback regarding overtime pay or exemption status. Guess what? These conversations with certain employees may fall within the scope of protected concerted activity.
When responding or discussing wages, overtime, and other compensatory issues with employees, there are several things an employer must keep in mind. The employer needs to be responsive to the employee’s inquiry, avoid making any statements that the employee “can always go elsewhere if he doesn’t like it,” and avoid restricting the employee from discussing his/her compensation issue with other employees or third parties. Above all else, do not discipline or terminate employees because they vocalize disagreement about the compensation issue.
Failing to recognize that these conversations relating to the FLSA and issues surrounding compensation communications are protected activities under the NLRA may result in the employer’s receipt of an Unfair Labor Practice (“ULP”) charge. An unsuspecting employer may find themselves on the receiving end of an NLRB Order requiring them to provide backpay along with issuing and posting a written acknowledgment of the NLRA violation.
If you have questions or concerns relating to these issues, please contact Rita Lauer at (248) 827-1889 or rlauer@maddinhauser.com. We are here to assist you in avoiding employment or labor problems before they become a problem.