Mouthing Off or Speaking Up

Mouthing Off or Speaking Up—What is Protected Speech Under the National Labor Relations Act?

Ted has a strong personality. He is very vocal with his opinions, especially when it comes to his pay and the work environment. Ted feels slighted and often riles up his coworkers who jump aboard his negativity train. Today things escalated, and the entire team joined in demanding better pay, and his manager, who has grown tired of the constant negativity goes to HR to see what can be done to address it.

What Constitutes Protected Speech?

The National Labor Relations Act (NLRA), enacted in 1935, is a cornerstone of labor rights in the United States. It guarantees employees the right to organize, form labor unions, and engage in collective bargaining. One of the critical protections under the NLRA is the right to engage in "protected concerted activities," which includes certain forms of speech. Employees covered by the NLRA are afforded certain rights to join together to improve their wages and working conditions, with or without a union. Understanding when speaking up is protected under the NLRA is essential for both employees and employers.

Under the NLRA, protected speech generally refers to comments or actions that involve two or more employees and pertain to matters concerning their working conditions and/or terms of employment. This can include discussions about wages, workplace safety, work hours, and other employment-related concerns. The key aspect is that the speech must be "concerted," meaning it involves or seeks to involve collective action by employees.

Most employees in the private sector are covered by the NLRA. However, the Act specifically excludes individuals who are:

• employed by Federal, state, or local government
• employed as agricultural laborers
• employed in the domestic service of any person or family in a home
• employed by a parent or spouse
• employed as an independent contractor
• employed as a supervisor (supervisors who have been discriminated against for refusing to violate the NLRA may be covered)
• employed by an employer subject to the Railway Labor Act, such as railroads and airlines
• employed by any other person who is not an employer as defined in the NLRA

More information is available on the jurisdictional standards page.

Examples of Protected Speech

• Discussing Wages and Benefits: Employees have the right to discuss their compensation and benefits with their coworkers. This type of speech is protected because it directly relates to their working conditions.
• Complaints About Working Conditions: Criticizing or complaining about workplace safety, policies, or management practices with fellow employees is protected. For example, raising concerns about inadequate safety measures or unreasonable work hours is considered protected speech.
• Social Media Posts: Posting about work-related issues on social media platforms can also be protected, provided it involves or seeks to involve other employees in the discussion. However, the context and content of the post are crucial in determining protection under the NLRA.

Limitations on Protected Speech

While the NLRA provides some far-reaching protections, not all speech is protected. Some limitations might include:

• Personal Gripes: Complaints or comments made by an individual employee without seeking collective action or without involving other employees are generally not protected.
• Disloyalty and Malicious Lies: Speech that is blatantly disloyal, reckless, or involves malicious falsehoods about the employer may not be protected.

Employer Retaliation and Employee Rights

Employees who engage in protected speech under the NLRA are shielded from employer retaliation. Employers are prohibited from disciplining, discharging, or otherwise penalizing employees for engaging in protected concerted activities. If an employee believes they have been retaliated against for their protected speech, they can file a charge with the National Labor Relations Board (NLRB), which investigates and remedies such violations. 

Conclusion—Was Ted Mouthing Off, or Speaking Up?

We need more information and context. But, at first glance, he is probably protected for speaking up on behalf of and alongside his coworkers. The manner in which Ted is doing this might have room for improvement, but his issues stem from some general concerns regarding pay and working conditions. Employers should not necessarily rush to take corrective action for outbursts, as they could potentially be protected. Employers should have a clearly written policy that defines inappropriate conduct in the workplace, including the use of offensive language in the workplace, and the consequences for violating the policy. However extreme care should be taken to avoid limited protected activities.

If you need help navigating a difficult situation, where protected activity may be taking place, our HR Hotline is here to help. Contact us today at [email protected].