Seyfarth Synopsis: Recently, an Administrative Law Judge (ALJ), issued a decision in two cases that create the opportunity for the National Labor Relations Act to have a more expansive view of what constitutes protected activity. The ALJ’s decision could also provide employees an expanded definition of protected activity by accepting that “inherently concerted” activity ought to be protected so long as the activity is being engaged in by employees for the purpose of improving the conditions of their workplace, including what seems to be workplace culture and ideologies. The decision, if adopted by the National Labor Relations Board, could expand what “workplace conditions” means in the context of the Act, especially for issues that employees cannot “check…at the door when they start their shifts.” Employers should think about what ideals are permeating their workplaces that might be “inherently concerted” activity and how those measure up to their current policies as well as their response to these activities.
NLRB General Counsel Jennifer Abruzzo has made no secret of her desire to overhaul extant law to “protect employee rights” under Section 7 of the Act. Among GC Abruzzo’s more controversial initiatives outlined in GC Memo 23-04 — and as she recently reaffirmed at the National Employment Lawyers Council Conference — is a proposal to expand the Act’s protection to employee statements about race, age, gender, sex, and even insurance. Stated another way, in the GC’s view, such individualized comments should automatically be considered concerted, even absent any showing that two or more employees were actually acting together for mutual aid or protection. See Seyfarth’s Blog on GC Memo-23-04.
While the Board has yet to pass on the General Counsel’s invitation to expand the inherently concerted doctrine, it will likely have the chance to do so in short order. Indeed, on May 3, 2023, an ALJ held that grocery store employees who wore “Black Lives Matter” buttons on their uniforms were engaged in protected concerted activity. According to the ALJ, by “displaying the ‘Black Lives Matter’ message on their work uniforms, the employees acted to advance their interest as employees to work in an anti-racist, pro-civil rights, and pro justice workplace.” The employer, then, violated the Act when it barred the employees from wearing the buttons in the workplace and by sending several employees home who refused to take them off.
Interestingly, the ALJ also took the employer to task for purportedly engaging in “virtue signaling,” which the ALJ characterized as a public display of support for a cause without corresponding “good works.” Here, according to the ALJ, the employer professed its support for the Black Lives Matter movement, but disciplined its own employees for doing the same.
Whether the employer’s purported virtue signaling had any impact on the ALJ’s ruling is anyone’s guess. What is more clear is that, except in limited situations, the Act grants broad leeway for employees to publicly address race-related topics together. And if the Board accepts the GC’s invitation to expand the inherently concerted doctrine, even individual comments regarding race will likely come under the Act’s protections.
With all this in mind, employers might consider taking stock of whether, and to what extent, they choose to make public statements of support regarding the news of the day or the movement of the moment. In some situations, discretion may truly be the better part of valor. To the extent employers choose to go on a limb, though, they might run the risk of employees seeking to do the same thing during regular working hours and on work time. Employers with questions about these matters should consult with experienced labor relations counsel.