Jimmy Starke
A recent report from the National Institute for Workers’ Rights (NIWR) provides a blueprint for employees to file claims against employers who retaliate against them for speaking to other workers about their job conditions. Speech of that nature, or “concerted activity”, is protected by Section 7 of the National Labor Relations Act (NLRA).
Union and non-union workers alike have the right to discuss the conditions of their employment with colleagues and join together to advocate for things that will improve their situations. This includes talking about wages, hours, workplace safety, and other broad topics that impact the workers’ quality of employment. If an employee is fired in retaliation for engaging in these protected discussions or bringing those concerns to management, workers can report it to the National Labor Relations Board. Employees can file online at the NLRB website and an attorney at the Board will take up the claim on behalf of the worker. Those claims are then heard, when possible, by NLRB judges who issue final decisions. NLRB judges can provide the workers relief, including reinstatement to the job and backpay for lost wages, and their decisions may be appealed.
The NIWR report discusses what makes these claims the most successful for employees. Mainly, the report concludes that claims are stronger when workers raise concerns to other coworkers about things that affect other coworkers. Complaining about things that only affect one person are not successful. The purpose of protecting “concerted activity” is to encourage workers to band together and advocate collectively for improvements in the workplace that will affect everyone. When those concerns are then expressed to management, it is helpful to Board attorneys if they are framed as complaints, not merely suggestions or requests.
The report also concluded that claims at the NLRB are stronger when things are well-documented. Communicating with other employees via text or email can demonstrate that collective concerns were being expressed. And, documenting the complaint to management can show that it was advocacy for a concern that effected more than one employee.
Finally, the report provided data that shows that these claims are, ultimately, very successful, when they are heard before a judge. 62% of individual, non-unionized employees won reinstatement and backpay from NLRB judges and 92% of those decisions survived appeal. Unfortunately, the likelihood of having a claim heard before an NLRB judge in a timely manner is relatively small. The report, therefore, advocates for increasing the funding of the NLRB to expand access to hearings. It also supports Congress’ proposal to create a private right of action for workers to file independently in civil court.
For more details on the takeaways described in this blog post, check out the full report.
