Section 7 of the National Labor Relations Act protects employees when they engage in protected concerted activity to raise concerns about pay or working conditions. Section 7 can protect employees who talk with co-workers about wages or benefits, as well as employees who act together to raise concerns about hours, scheduling, safety, or workplace rules.
Concerted activity usually involves more than one employee, but Section 7 can protect one employee who speaks on behalf of co-workers, or one employee who asks co-workers to raise the issue together before that employee brings it to management.
The National Labor Relations Board enforces Section 7 in most private-sector workplaces. Section 7 does not apply to federal, state, or local government employers, and it doesn’t protect supervisors or independent contractors. Employees don’t need to belong to a union for Section 7 protection to apply.
Conduct That Can Qualify as Protected Concerted Activity
Pay Discussions and Working Conditions Complaints
Employees engage in protected concerted activity when they communicate with co-workers about pay or working conditions and they take steps together to address it. Protected concerted activity can start as co-workers sharing information, then it can turn into a coordinated request or complaint delivered to a supervisor or HR.
Examples tied to pay and working conditions:
- Co-workers compare pay, then agree to raise a pay issue with management.
- Co-workers discuss scheduling, then send a joint message asking for a change.
- Employees raise a safety concern together, including through a group message.
- One employee delivers a concern that came from co-workers acting as a group.
Safety Complaints and Refusals to Work
Protected concerted activity can cover employees who raise workplace safety concerns with co-workers and then take group action to address the issue. It can also protect employees who jointly refuse to work under unsafe conditions.
Examples of protected concerted activity tied to safety:
- Co-workers talk about a hazard, then agree to report it to a supervisor or HR.
- Employees send a group message about a safety problem, then ask management to fix it.
- Employees raise the same safety concern in a meeting as a group, even if one employee does most of the talking.
- Employees coordinate a refusal to perform a task until management addresses a safety condition connected to the job.
Social Media, Group Chats, and Reaction Activity
Online conversations can qualify as protected concerted activity when employees use group chats or social media to discuss pay or working conditions with co-workers. A co-worker’s post about pay or working conditions can also qualify as protected concerted activity when other employees respond in support and the thread becomes a group workplace discussion.
Examples tied to social media and group chats:
- Co-workers discuss a workplace concern in a group chat, then decide to raise it with management.
- Employees comment on a co-worker’s post about pay or working conditions, and the thread turns into a group discussion.
- Employees use a group message to coordinate a joint complaint about hours, staffing, or safety.
- One employee posts about a workplace issue on social media to invite co-workers to act together.
Petitions, Group Letters, and Coordinated Messages
Employees engage in protected concerted activity when they organize, sign, circulate, or deliver a petition about pay or working conditions. Co-workers also engage in protected concerted activity when they draft and send a joint letter to management about working conditions, or when they agree on a shared concern and send one coordinated written message to a supervisor or HR.
Examples tied to written group requests:
- Co-workers sign a petition about pay, then deliver it to a supervisor or HR.
- Employees send a group email that asks management to change a workplace rule tied to working conditions.
- Co-workers draft a joint letter about a safety issue and ask for a response in writing.
- One employee delivers a written complaint that reflects a group concern after co-workers agree on the message.
Work Rules That Discourage Protected Concerted Activity
Section 8(a)(1) prohibits employers from adopting or enforcing policies that interfere with Section 7 rights, and it treats policies that discourage employees from engaging in protected concerted activity as an unfair labor practice. In a 2023 Board decision (Stericycle), the Board adopted a new framework for evaluating work rules that asks whether a reasonable employee would read the wording as a deterrent to exercising Section 7 rights.
Handbook rules can violate Section 7 when the wording would reasonably deter Section 7 activity, including when they:
- Prohibit employees from discussing wages or benefits with co-workers.
- Restrict employees from discussing working conditions with co-workers.
- Require employees to keep workplace complaints inside the company.
- Prohibit employees from speaking to government agencies about workplace concerns.
- Use “civility” or “respect” wording that employees could read as a ban on workplace complaints shared with co-workers.
Severance Terms That Restrict Workplace Discussions
Severance agreements can raise Section 7 problems when confidentiality or non-disparagement terms restrict what employees can say about pay or working conditions. The Board’s 2023 decision (McLaren Macomb) held that an employer can violate the Act by offering a severance agreement with overly broad terms that interfere with Section 7 rights, even before anyone signs it.
The NLRB’s General Counsel issued guidance after McLaren Macomb and stated that an employer can use narrow, targeted confidentiality or non-disparagement terms without interfering with Section 7 rights, but an employer can violate the Act when those terms restrict employees from discussing pay or working conditions with co-workers or cooperating with the NLRB.
Workplace Monitoring That Discourages Protected Concerted Activity
Electronic monitoring and automated management practices can interfere with Section 7 when the monitoring makes employees hesitate to talk with co-workers about pay or working conditions. The NLRB’s General Counsel described this problem in a 2022 memorandum and flagged tools like audio recording, camera and badge tracking, GPS tracking, and computer monitoring that captures keystrokes, screenshots, webcam images, or audio.
Monitoring can violate Section 8(a)(1) when it discourages employees from talking with co-workers about terms and conditions of employment, like wages, benefits, schedules, safety, or workplace rules. Monitoring can also violate Section 8(a)(1) when the program records or collects employee communications about wages, benefits, schedules, safety, or workplace rules, or when management uses monitoring data to single out employees who took part in protected concerted activity.
Employer Do’s and Don’ts
Do’s
Before supervisors respond to a group complaint, the employer should identify whether the complaint reflects protected concerted activity. The employer should respond to the complaint through the normal channel for employee concerns and should not treat the complaint itself as the basis for discipline. Supervisors should issue discipline only for a rule violation or performance issue that stands apart from the protected activity.
Don’ts
Supervisors should not direct employees to stop discussing pay or working conditions with co-workers, and supervisors should not discipline employees for having those discussions, even when a supervisor overhears the conversation or receives a complaint about it. A company policy cannot override Section 7 protections, so a civility or confidentiality policy cannot justify discipline that punishes employees for discussing pay or working conditions with co-workers.
Employer Checklist for Evaluating Protected Concerted Activity
- Identify whether the employee activity qualifies as protected concerted activity.
- Respond to the complaint through the normal channel for employee concerns.
- Do not discipline an employee because the employee engaged in protected concerted activity.
- Route the situation to HR before a supervisor issues any discipline.
- Keep investigation questions limited to the issue under review and avoid questions that pressure employees to name co-workers who supported the concern or took part in it.
- Tie discipline to a specific rule violation or performance issue that stands apart from the protected activity and keep the reason consistent in every internal record.
- Review the specific rule or monitoring practice the employer plans to cite in a warning or write-up and confirm it does not restrict protected concerted activity.
Employer FAQs
Does Section 7 protect one employee acting alone?
Section 7 usually applies when employees act together, but one employee can still engage in protected concerted activity. Section 7 protection applies when the employee speaks on behalf of co-workers, brings a group concern to management after co-workers agreed on it, or tries to get co-workers to act together before raising the issue. HR should not discipline an employee for speaking on behalf of co-workers or for trying to organize group action unless the discipline is based on misconduct unrelated to the Section 7 activity.
Can an employer discipline employees for discussing pay at work?
Section 7 protects employees who discuss wages or benefits with co-workers, so discipline based on those discussions can violate Section 8(a)(1).
Does protected concerted activity apply to social media and group chats?
Section 7 protects employees when they use group chats or social media to discuss pay or working conditions with co-workers. A co-worker’s post about pay or working conditions can become protected concerted activity when other employees respond and the thread becomes a group workplace discussion.
What steps should an employer take after a group safety complaint?
Supervisors should treat the group safety complaint as protected concerted activity and route it to the safety contact responsible for investigating hazards and documenting corrective action. Supervisors should not discipline employees for raising the complaint or for raising it as a group. Any discipline should address misconduct unrelated to the safety complaint.
Group complaints and coordinated employee activity can create Section 7 risks for employers who lack clear procedures for evaluating protected concerted activity. The national labor and employment group of Conn Maciel Carey LLP helps employers design compliant handbook policies, review monitoring practices, and train supervisors to respond to group complaints without triggering unfair labor practice charges. Send us a message or give us a call at (202) 715-6244 to discuss your workplace policies.