In a pair of noteworthy decisions in August, the National Labor Relations Board (NLRB) expanded the criteria for determining “protected concerted activity” under federal labor law. This action provides insights into how employee activities will be assessed under the previous framework—long before the onset of the digital age.
The cases in question were primarily focused around the core definition of the National Labor Relations Act’s interpretation of “concerted activities”. Specifically, case Miller Plastic Products, Inc., 372 NLRB No. 174 (2023), marked a significant shift by reverting to a “totality of the circumstances” approach to discerning whether an employee’s action is concerted.
In practical terms, the NLRB indicated that an employee’s participation in solo action could potentially be deemed concerted if the broader conditions indicate that the action was for the “purpose of collective bargaining or other mutual aid or protection.” They noted this might include situations where the lone activity was a logical outgrowth of prior group action, or was implicitly undertaken on behalf of, or directly touched on the interest of a group of employees.
Moreover, these rulings suggest a clear unifying theme – an expansive interpretation of what constitutes ‘protected concerted activity’. This is notably salient given the recent surge in labor organizing and employee activism, and seemingly squarely positions the NLRB to grapple with these unfolding workplace developments.
The legal professional community needs to pay close attention. Understanding these changes is vital for professionals working with corporations and law firms needing to navigate complex labor relations situations. It is, therefore, imperative for them to grasp the details of these new determinations, as well as the potential implications for business practices, employee rights, and labor relations strategies moving forward.