Section 7 of the National Labor Relations Act (“NLRA”) provides that “employees shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” 29 U.S.C. § 157. Section 8(a)(1) of the NLRA protects employees’ Section 7 rights by prohibiting an employer from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7] . . . .” 29 U.S.C. § 158(a)(1).
It is well established that the NLRA’s protection extends beyond the context of labor unions. Speech of an individual employee is “concerted” as long as it is engaged in with the object of initiating or inducing group action. N.L.R.B. v. Caval Tool Div., 262 F.3d 184 (2d Cir. 2001). When an individual expresses dissatisfaction with terms and condition of employment in front of his fellow employees, “the object of inducing group action need not be express.” Timekeeping Sys., Inc., 323 NLRB 244, 247 (1997).
The courts and the NLRB have repeatedly found that individuals who challenge working conditions through online conversations are engaged in concerted activity. In Three D, LLC v. NLRB, 629 F. App’x 33 (2d Cir. 2015), four employees were terminated after they had a discussion on Facebook about their employer improperly calculating their tax withholdings, which caused them to owe money. The Second Circuit affirmed the NLRB’s decision finding that the Facebook activity was “concerted” under Section 7 because it involved four current employees and was part of an ongoing sequence of discussions that began in the workplace about the calculation of employees’ tax withholding. As the court stated, “We agree with counsel for the Board that [the employees’] communications, which were made to seek and provide mutual support looking toward group action, were not made to disparage [the employer] or to undermine its reputation. The Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw [the employees’] statement[s] could evaluate the message critically in light of that dispute.” Id. at 37 (internal citations and quotation marks omitted).
In Care Ambulance Service Inc. and Elizabeth Tello, an Individual, 2007 WL 3070947 (2007), two employees were exchanging email messages that involved shared concerns about working conditions, including their concern that other employees were receiving preferential treatment from management. The NLRB found that because the employees’ “were voicing their concerns for the purpose of mutual aid or protection activity,” the email exchange fell comfortably within the definition of concerted activity. In American Postal Workers Union and Cheryl Alves, an Individual, 2006 WL 2559848 (2006), another case involving conversations online, the NLRB found that the purpose of the employees’ emails was to express their concerns that they, as field employees, were being treated differently than headquarters employees. Since the employees’ online activity directly related to their conditions of employment, it also constituted protected concerted activity under the NLRA.
If you believe that your employer retaliated against you for engaging in some “concerted activity,” it’s smart to immediately contact a New York employment attorney to preserve all your rights.