Protected Concerted Activity

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What is Protected Concerted Activity?

Protected Concerted Activity refers to a legal concept in the United States under the National Labor Relations Act (NLRA) which protects the rights of employees to engage in activities related to forming, joining, or assisting labor organizations, or to engage in other activities for the purpose of collective bargaining or other mutual aid or protection. This includes actions taken by employees as a group, such as strikes, slowdowns, and picketing, as well as individual actions taken by employees in support of group action. The NLRA protects employees from retaliation by employers for engaging in protected concerted activity, and it is illegal for an employer to interfere with, restrain, or coerce employees in the exercise of these rights.

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Image showing the meaning of protected concerted activity

What is the importance of Protected Concerted Activity?

Protected Concerted Activity is important because it helps to ensure that employees have the ability to collectively negotiate and advocate for their rights and interests in the workplace. It allows employees to take collective action to address issues such as wages, hours, benefits, and working conditions.

  1. Improving Working Conditions: By allowing employees to collectively negotiate and advocate for their rights, protected concerted activity can help to improve working conditions and ensure that employees are treated fairly.
  2. Increasing Employee Voice: Protected concerted activity gives employees a voice in the workplace, enabling them to speak out against unfair treatment and advocate for better working conditions.
  3. Promoting Fair and Democratic Workplace: Protected concerted activity promotes a fair and democratic workplace, where employees can come together to negotiate with their employer and have a say in the terms and conditions of their employment.
  4. Protecting Employees Rights: Protected concerted activity helps to protect the rights of employees to engage in activities related to forming, joining, or assisting labor organizations, or to engage in other activities for the purpose of collective bargaining or other mutual aid or protection.
  5. Balancing Power between Employees and Employers: Protected concerted activity helps to balance the power between employees and employers, by giving employees the ability to collectively negotiate and advocate for their rights and interests in the workplace.

What is the use of Protected Concerted Activity?

Protected Concerted Activity is used to protect the rights of employees to engage in activities related to forming, joining, or assisting labor organizations, or to engage in other activities for the purpose of collective bargaining or other mutual aid or protection. HBR’s labor law and employee rights research

  1. Collective Bargaining: Employees have the right to engage in collective bargaining, which is the process of negotiating the terms and conditions of employment, including wages, hours, benefits, and working conditions.
  2. Strikes and Picketing: Employees have the right to engage in strikes and picketing, which are actions taken by employees as a group to protest or negotiate with their employer.
  3. Slowdowns: Employees have the right to engage in slowdowns, which is when employees intentionally work at a slower pace to protest or negotiate with their employer.
  4. Group Complaints: Employees have the right to complain or express opinions together, such as discussing wages and working conditions with their coworkers, or expressing support or opposition to a union.
  5. Protection against Retaliation: Protected concerted activity also protects employees from retaliation by employers for engaging in protected concerted activity. Employers are prohibited from interfering with, restraining, or coercing employees in the exercise of their rights.

SHRM’s NLRA and protected activity guidance

HR teams must understand protected concerted activity to avoid NLRA violations when employees discuss working conditions or take collective action. Using objective assessments and a structured hiring plan drives improvement, helping organizations attract and retain top talent.

Frequently asked questions

Protected concerted activity (PCA) is workplace action by two or more employees — or by one employee acting on behalf of others — to improve working conditions, wages, or terms of employment. Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to engage in concerted activity for mutual aid and protection, and employers cannot retaliate against employees for doing so.

No — PCA protections apply to all private-sector employees covered by the NLRA, whether unionized or not. Non-union employees retain Section 7 rights. For example, two non-union employees who complain to management about unsafe conditions, discuss their salaries with coworkers, or jointly refuse to work unsafe overtime are engaging in protected concerted activity. Union membership is not a prerequisite for NLRA protection.

Protected examples: employees discussing wages or working conditions with coworkers, employees collectively complaining to management about a supervisor, a single employee raising a complaint on behalf of coworkers (even without prior authorization), employees organizing a union, participating in a strike, walking off the job together over safety concerns, and leaving work together in protest of policy changes. Social media posts discussing working conditions with coworkers may also qualify.

NLRA violations: terminating or disciplining employees for discussing wages, retaliating against employees who collectively complained to management, maintaining handbook policies that prohibit employees from discussing pay or working conditions, threatening employees for union organizing activity, interrogating employees about union sympathy, and making unilateral changes to working conditions without union consultation (for unionized workplaces).

Pay secrecy policies that prohibit employees from discussing their compensation are unlawful under the NLRA — employees have the explicit right to discuss wages with coworkers. Broad ‘no gossip’ or ‘no negativity’ policies can also be found unlawful if the NLRB determines they would reasonably chill employees’ exercise of Section 7 rights. HR should have employment counsel review handbook policies for NLRA compliance.

Lawful responses: investigate complaints promptly and in good faith, address legitimate concerns where possible, communicate the response to the employees who raised the issue, document the response process, distinguish between protected activity (employees discussing conditions together) and unprotected conduct (insubordination, harassment, or malicious fabrication). Consulting NLRA counsel before disciplining any employee involved in collective complaints significantly reduces NLRA violation risk.