Wednesday, April 13, 2022

Protected concerted activity is an opportunity to engage with your employees, not to retaliate against them

"Due to the 6.8% inflation rate, all US workers are entitled to at least a 6.8% pay adjustment. We have received reports of some ABUSIVE EMPLOYERS not providing these adjustments. If you have not received such a raise, please ask your employer why your PAY WAS CUT."

"WHAT TO DO ON A BREAK TODAY: (1) Talk about your PAY. (2) Talk about your RIGHTS. (3) Begin ORGANIZING A UNION. GOOD employers are not afraid of these, but ABUSIVE ones are."

"You have a protected LEGAL RIGHT to discuss your pay with your coworkers. This should be done on a regular basis to ensure that everyone is being paid fairly. It is ILLEGAL for your employer to punish your for doing this."  

These comments, shared in the antiwork subreddit, appeared on sales receipts at an unknown and unnamed brewery.

Your first instinct as the employer in this case might be to try to figure out who did this and to fire those responsible.


1/ It's illegal to fire employees who engage in protected concerted activity

The National Labor Relations Act grants all private sector employees, union and non-union, the right to discuss, between and among themselves, wages, benefits, hours, and other terms and conditions of employment, including, but certainly not limited to, how much they earn and unionization. The messages on these receipts encompass all of this. 

Can you make an argument that this is a lone-wolf employee and therefore the messages are not protected? You can make that argument, but it's likely a loser given the NLRB's broad definition for what qualifies as concerted

Can you argue that the messages lose their protection because they are included in communications to non-employee customers? You can make that argument, too, but it's also likely a loser under similar NLRB precedent. As long as the action is undertaken to initiate or induce group action, it's concerted.

The safest course of action is to assume that any gripes about wages, hours, and other terms and conditions meets the protected concerted activity standard and act accordingly — i.e., don't retaliate.

2/ Whichever employee(s) is/are responsible for this messaging have done your business a tremendous favor. 

You now know that at least some of your employees believe that they are underpaid. You also now know that some are considering organizing a labor union, or at least are talking about it and are open to the idea. 

Engage, don't retaliate. 

Talk to your employees are why they feel they are underpaid and what (if anything) you can do to change their opinion. Talk to them about other perceived abuses in the workplace. And commit to doing better (or explain why what you are doing is your best effort, if it truly is). 

Better your employees talk to you about these issues than to a union organizer. You have the power and ability to affect positive change for your employees. Seize the opportunity they are granting you. Otherwise, the change might come from across a bargaining table.