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NLRB Tipped the Scales to Ensure More Employee Conduct Is Considered Protected Concerted Activity

26 Oct


Update Applicable to:

All employers.

What happened?

Due to Miller Plastics Ruling by the National Labor Relations Board (NLRB), from now on the interpretation of what it is to engage in concerted activities will be decided in a case-by-case analysis and not using the Five Factor Standard.  

What are the details?

Previously in 2019, the NLRB board decided to create a Five Factor Standard to decide whether an employee was engaging in concerted activities or not. For more information see Alstate Maintenance.

Now the NLRB board has decided to overturn said standard and will decide case-by case, according to the facts and the totality of the recorded evidence. For more information see Miller Plastic Products, Inc.

For a definition of concerted activities: Link

For more information, please see the links below:

Law Firm articles: Article 1, Article 2, Article 3

What do employers need to do?

Employers should be mindful of the new standard and proceed with caution before taking disciplinary action against employees who complain about terms or conditions of employment.

Per SHRM advice, an employer could try to show that it would have taken the same action, regardless of the concerted nature of the activity.

Consider that the standards applied, and interpretation vary according to the presidential administration.

The definition of what actually constitutes protected concerted activity has expanded and contracted over the years with each change in Presidential administration. Unsurprisingly, the Trump administration took a narrow view of the definition. Just as unsurprisingly, the Biden Board’s view is much broader – as demonstrated in these two cases.” (Shawe Rosenthal, LLP law firm)

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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