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NLRB Prohibits Pre-Emptive Strike Against Concerted Activity

    Client Alerts
  • February 18, 2011

The National Labor Relations Act protects the rights of employees to engage in concerted activity, such as collective discussion of wages or other terms and conditions of employment with their employers. Last month, the National Labor Relations Board extended the Act's coverage to preliminary activities by employees that do not yet constitute concerted activity.

In Parexel International, LLC, a terminated employee alleged that he was fired after preliminary discussions with other employees regarding wages and wage discrimination. The employer allegedly caught wind of these discussions before the employee raised them with the employer.  The administrative law judge who heard the matter concluded that the employee had not yet engaged in any concerted activity with regard to these wage issues, and therefore could not contend that his termination violated the NLRA.

The Board reversed this decision, concluding that the underlying policies behind the Act mandate that employee discussions that could lead to concerted activity are also legally protected behavior. Employers cannot conduct pre-emptive strikes to prevent concerted activity at early stages before employees gain clear statutory protection against retaliation.

When combined with last week's Facebook settlement, this decision demonstrates the NLRB's shift to strong protections of employee rights to criticize employers and the terms and conditions of their employment, regardless of the forum used, and regardless of the stage in which this criticism arises. Employers should exercise caution before disciplining or discharging any employee who could be considered to have raised questions regarding their employment conditions on behalf of themselves and other employees.