A decision last week by the National Labor Relations Board may have a far-reaching impact on employers.    In Parexel International, a nurse complained to a supervisor (but not to other employees) about wages and working conditions.  When she was fired, she alleged that it was an unfair labor practice under the National Labor Relations Act and filed a charge with the NLRB.   An Administrative Law Judge initially ruled in favor of the company, finding that  there was no protected or concerted activity because the employee had not complained to other employees and therefore could not have acted “in concert” with them. 

The NLRB, however, reversed, ruling that the firing was a “preemptive strike” done to stop the employee from complaining to the other employees, and therefore the discharge was unlawful.   The Board suggested that, under certain circumstances, employees who have engaged in no concerted activity at all are protected from adverse action. For example, an adverse action taken against an employee based on the employer’s belief that the employee engaged in protected concerted activity is unlawful even if the belief was mistaken and the employee did not in fact engage in such activity. Similarly, a mass discharge undertaken without concern for whether individual employees were engaged in concerted activity—where “some white sheep suffer along with the black”—violates the Act.  What is critical in those cases is not what the employee did, but rather the employer’s intent to suppress protected concerted activity.

This decision is troubling for a couple of reasons.  First, keep in mind that even non-union employees have the right to engage in concerted activity.  Thus, this decision could greatly expand the definition of protected-concerted activity.  It is feasible to argue that every time an employee complains and is subsequently fired, the employee can file an unfair labor practice charge, and it becomes a fact issue as to whether the employer was motivated by a desire to “nip the complaint in the bud” or by something else.

Hat Tip:  Workplace Prof Blog