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Concerted Activity or Mere Griping?

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Employees have the right to engage in concerted activities, and employers commit unfair labor practices if they retaliate against employees for engaging in those activities.

It is important to understand the concept of concerted activity.

In order to find that an employee has engaged in concerted activity, it must be shown that: 1) the activity was engaged in with or on the authority of other employees; or 2) the activity was designed to initiate or to induce or to prepare for group action; and 3) the activity was engaged in for the purpose of “mutual aid or protection.”

However, the concept of concerted activity does not apply to activities of a purely personal nature that do not envision group action.

The National Labor Relations Board has also developed the doctrine of “inherently concerted activities.” Under this doctrine, an employee engages in concerted activity if he or she engages in discussions about “vital terms and conditions of employment,” such as wages and job security, even though such discussions do not have the express object of inducing group action.

When confronted with claims that an employee was terminated or treated less favorably because the employee had engaged in concerted activity, the employer should consider conducting an analysis of whether the alleged activity by the employee falls within the above described requirements.