HR Alert: Individual Griping Isn’t Protected Activity

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The National Labor Relations Board recently reduced employee protection for griping or complaining about work. The National Labor Relations Act allows employees to engage in protected concerted activity, including bad-mouthing their employers, but only under certain circumstances. Those circumstances were broadened under the Obama Administration and are now being narrowed under the Trump NLRB.

What concerns employers most? Typically employers are upset about their staff taking to social media and criticizing the company, managers, and coworkers.

The NLRB recently outlined factors used to determine whether an employee’s griping is protected speech and therefore should not result in discipline. They are:

  • Did the employee speak in a meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment?
  • Did the decision affect multiple employees attending the meeting?
  • Was the employee who spoke up protesting or complaining about the decision (as opposed to asking questions about the decision)?
  • Did the employee complain about the decision’s effect on the workforce generally or some portion of the workforce (as opposed to the decision’s effect on the individual employee)?
  • Was the meeting the employees’ first opportunity to address the decision?

If most or all of these factors are present, the employee’s conduct likely is protected, and in general he may gripe all he wants! If only one or a few of the factors are present, it’s a stickier situation. There, the employer is well-advised to seek guidance from legal counsel before a disciplinary action.

We’re watching the NLRB closely to see what else we can learn from its decisions in 2019. Although no one knows for certain, we predict the NLRB will continue to reduce protections for employees. It’s quite likely an employee who complains only about her unique predicament – and does so with offensive language or in a manner that unnecessarily brings public attention to her employer – may not find her speech protected by the NLRA during the Trump Administration.

If you have compliance questions about the NLRA, contact us. The attorneys at The Coppola Firm can help.

Lisa Coppola

Written by Lisa Coppola

Founder of The Coppola Firm

Lisa A. Coppola, Esq. understands the challenges her clients face, whether they’re starting a new business, taking their existing operations in a new direction, or facing a claim or threat.

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