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NLRB Says Letting Co-Worker Know About Job Posting is Protected Activity Under Federal Labor Law

    Client Alerts
  • May 22, 2015
Last month, the National Labor Relations Board continued its expansion of legal protections for employees in non-unionized workplaces. In a 2-1 decision, the Board concluded that Section 7 of the NLRA prohibits employers from disciplining an employee for advising a co-worker about an Internet job posting. Section 7 protects employees who engage in “concerted activity” to protest or otherwise oppose terms and conditions of employment.

In Sabo, Inc., the company fired a driver who showed a help-wanted advertisement to a co-worker. Although the posting did not identify the employer, the employees concluded that it was placed by their employer, and indicated an intent to replace a driver. When the driver shown the posting asked management about his job status, the company responded by terminating the employee who showed him the ad, claiming that she had engaged in malicious gossiping. In response to the NLRB charge, the employer contended that the terminated employee had not engaged in concerted activity, because she never participated in any group action to oppose or challenge working terms.

The NLRB majority disagreed, concluding that the terminated employee’s behavior was “inherently concerted.” This term is not found in the statute, and the majority justified its characterization by noting that any discussions among employees with respect to job security go to the heart of the employment relationship, and are automatically concerted activity. The dissenting judge noted that this expansion of the definition of concerted activity could lead to limitless claims that do not involve employees banding together to oppose workplace policies.

The NLRB does not appear to have reached any consensus on the limits of Section 7 rights or employer obligations. Until federal courts create boundaries over these claims, employers can expect continuing Board challenges to previously permitted workplace actions.