Under federal and Minnesota law, employees have broad rights, even when they are not union members. In general, employees have the right to act together for protection or to improve working conditions. Employers who violate this right may face action by the National Labor Relations Board (NLRB) or by employees themselves in state court.

The National Labor Relations Act (NLRA), enforced by the NLRB, sets the base protections for employees, and the activities protected under the NLRA take precedence over state laws. Under statute 157 if the NLRA, employees “have the right to . . . engage in . . .  concerted activities for the purpose of collected bargaining or other mutual aid or protection.” These activities are protected even if the employees are not members of a union.

There are three main parts to statute 157:

  • First, these rights do not apply to employees acting independently. The actions must be “concerted” to be protected. They must be engaged “in or with or on authority of other employees.” Employees are protected not only when they act with other employees, but also when they “seek to initiate or to induce or to prepare for group action.”
  • Second, individuals acting only on their own behalf are not protected under the NLRA, but protections begin as soon as they begin planning for “group action.”
  • Third, keep in mind that the activity must have the “purpose of collected bargaining or other mutual aid or protection.” Even with this purpose, however, employees are not protected when their activities consist of conveying information with a “reckless disregard of its truth or falsity” or when they are “a disparagement of the company’s reputation or the quality of the Company’s product’” or ‘are maliciously motivated’.”

Consequences of Violation

Employers who violate rights protected by the NLRA are subject to enforcement actions by the NLRB. For example, the staff at an urgent care center in Northfield, Minnesota, sent an anonymous letter to the center’s owner, asking that he reconsider cutting wages. Two employee-writers were fired. The NLRB took up the case and ordered full back pay and reinstatement for the employees.

Employers have also been found in violation of the NLRA and ordered to reinstate their employees and/or provide full back pay plus interest when:

  • The employer fired employees after several posted a YouTube video complaining of hazardous working conditions.
  • The employer fired employees who posted on Facebook in response to a coworker’s criticisms of their job performance.
  • The employer fired a supervisor when she refused to share the names of employees who signed an anonymous petition protesting management.

Minnesota provides employees additional protections under the Minnesota Labor Relations Act (MLRA). Under Minnesota statute employees have the right “to engage in lawful, concerted activities for the purpose of collected bargaining or other mutual aid or protection.” Among these protected activities is the right to strike. Strikes, however, must not violate collective agreements or other laws. Employees can bring suits for injunctions or temporary restraining orders when “any unfair labor practice is threatened or committed.”

As an employer, it is important to consider the reasons for taking disciplinary action against and employee. Be sure to consider whether the activity motivating the discipline is protected “concerted activity” under either federal or Minnesota law. When disciplining employees who may have engaged in “protected concerted activity,” be sure to note the reasons for the discipline. Employees who have engaged in protected activity cannot seek protection under the NLRA or the MLRA when they have been disciplined for legitimate non-protected reasons. If you are unsure, consult an attorney.

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