In the early days of the COVID-19 pandemic, some employees—especially those deemed essential—staged walkouts and sickouts, demanded hazard pay, and asked for more or better personal protective equipment. Sometimes they engaged in public protests or took their message to the media.
While many employers have addressed the conditions giving rise to such actions, the reopening of nonessential businesses and the summer resurgence of COVID-19 cases suggest it is not too late for a refresher on U.S. labor law’s protection of employees who band together to raise common concerns about working conditions.
The National Labor Relations Act (NLRA) makes it unlawful for an employer to discharge, discipline, threaten or coercively question employees for engaging in concerted activities for mutual aid or protection, commonly referred to as protected concerted activity (PCA). Employee refusals to work in dangerous conditions and group demands for greater safety protections, more-flexible leave, hazard pay, scheduling changes and stricter cleaning practices are usually protected. The NLRA covers nearly all employees—union and nonunion alike—but it does not cover supervisors or independent contractors.
PCA typically requires two or more employees acting together, but a single employee’s conduct may be “concerted” if undertaken with or on the authority of others. In a recent case, the National Labor Relations Board (NLRB) made it more difficult to prove that an individual employee is acting on behalf of a group. Other Obama-era rulings may be toppled in the coming months, so it’s important to stay abreast of developments.
Employees can lose protection if they say or do something “egregiously offensive or knowingly and maliciously false, or by publicly disparaging [the] employer’s products or services without relating [their] complaints to any labor controversy,” according to the NLRB’s website. But an employer that lashes out against even unprotected public protests or employee appeals to the media can make things worse. “It isn’t wise or good business practice to get into a social media war with your employees. Take the high ground,” says Letitia Silas, an attorney with Fisher Phillips in Bethesda, Md., and a member of the firm’s COVID-19 task force.
“Make sure managers and supervisors know how to recognize PCA or indicators that certain types of activity might be PCA,” Silas says. Train frontline supervisors and middle managers to engage HR and/or labor relations staff for guidance, and brief senior leadership—including CHROs—on how to appropriately respond.
In the heat of an incident, do not panic, overreact or jump to a decision in response to employees who refuse to work, says Ruthie Goodboe, an attorney with Ogletree Deakins in Pittsburgh and the Detroit metropolitan area.
Instead, “Ask employees, ‘What are your concerns, and why are these your concerns?’ ” Goodboe advises. “Don’t treat it as a militant action. The issue might involve something the employer hasn’t thought about and might lend itself to a simple fix. It might be an opportunity to show employees we’re all in this together. We all have fears.”
A thorough investigation is necessary, and knowing the PCA rubric is essential to conducting it properly. But—as with any other matter regarding employee relations—HR should focus first on gathering all relevant information rather than on reaching a legal conclusion.
In the COVID-19 context, this means evaluating not only the employee action, but also the issue that prompted it, Silas says. “If there are employee complaints that the workplace is not safe or that there isn’t adequate PPE [personal protective equipment], those are serious concerns that should be looked into and addressed if necessary.” Be sure to interview the managers of those involved about all aspects of the situation. They may have relevant knowledge but may not always be aware of its significance.
Other issues to consider in an investigation are whether the employee complaint involves the application of a particular employer policy and whether that policy is lawful and up-to-date. Even more important is whether the employee activity is protected by any other federal or state employment laws (e.g., statutes concerning health and safety, family and medical leaves of absence, and anti-discrimination).
What sometimes makes HR professionals lose their cool when faced with work stoppages and group demands is that many practitioners—especially those in nonunion workplaces—may never have encountered such activities before. “There are large, sophisticated employers that still don’t know the NLRA applies if they don’t have unionized employees,” Goodboe says.
What is protected concerted activity?
Protected concerted activity under the National Labor Relations Act includes a wide range of activities by two or more workers, including refusing to do any of the following:
- Work unless their work environment is sanitized, particularly if someone at the workplace has been sick.
- Share personal protective equipment or outerwear and insisting on having their own.
- Work unless they are permitted to wear masks on the job.
A group of employees may refuse to work next to someone who has symptoms, notes Michael Lotito, an attorney with Littler in San Francisco. But if an individual with symptoms is ordered to go home, others might protest if the co-worker doesn’t receive sick pay, he adds.
“Be sure supervisors know about the concept of [protected] concerted activity,” Lotito says.
Err on the Side of Care
Even if an investigation results in a sound conclusion that there was no protected activity of any kind, taking disciplinary action against workers who withhold their labor or air their grievances should probably be a last resort.
“We advise clients to treat everything as though it were PCA initially,” Goodboe says. “If you don’t handle these situations with compassion and care, you will have PCA” in the form of protest of the adverse action.
Silas agrees that management’s response even to unprotected behavior is key. Interrogating, threatening, imposing more-onerous working conditions or taking formal adverse action will stimulate a new round of complaints.
If it becomes necessary to terminate the employment of an individual who refuses to work out of fear of COVID-19, do it diplomatically. “Maybe you say, ‘When you’re ready to work, please come back and reapply [for available openings],’ ” Goodboe suggests. “Employers are going to be judged. This is an opportunity for [them] to set a new standard for the type of employer they want to be.”
Even if disciplinary action is justified, that doesn’t stop employees from taking legal action. Employers that behave with care and reasonableness are in a good position to mount a vigorous defense.
“Employees have learned during COVID,” Goodboe says, “and they’re not going to forget their power.”
Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.