NJBIA's Public Policy Forum: The Road to Recovery REGISTER

 

The National Labor Relations Act says employees are entitled to engage in “protected, concerted activities” that involve the terms and conditions of the workplace. What exactly constitutes a concerted activity had shifted under the Obama administration, and now, the National Labor Relations Board (NLRB) is shifting it back some.

At least that’s how it’s viewed by the law firm Jackson Lewis.

Attorneys Philip Rosen, Howard Bloom and Michael Mortensen said a ruling this month by the NLRB has narrowed the circumstances under which a complaint made by an individual employee is considered concerted activity. 

“The board reaffirmed and applied the standard set forth in its seminal holdings in Meyers I and Meyers II, under which ‘individual griping does not qualify as concerted activity solely because it is carried out in the presence of other employees and a supervisor and includes the use of the first-person plural pronoun,’” they wrote in an article for the firm’s website.

They also note that the NLRB has overturned its WorldMark by Wyndham decision, which held “as a rule of law” that a complaint made by an employee in a group setting was, per se, concerted activity.

“(The case) is likely the first step toward reining in the expanded scope of what the Obama-era Board considered protected, concerted activity,” the attorneys state. “The board appears ready to move away from bright-line tests, such as ‘inherently concerted’ topics of discussion, and return to a fact-specific inquiry to determine whether an employee’s actions are truly protected, concerted activities as opposed to unprotected individual concerns or griping.”