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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