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Use caution when dealing with ‘Protected concerted activity’

by on
in Employment Law,Human Resources

Q. I recently received a memo signed by all four employees in one department asking for 5% raises. Can I have a meeting with them to let them know that there is no money for raises, that their department could easily be eliminated and that they would be smarter just to keep a low profile and do their jobs?

A. Such a meeting would probably violate the National Labor Relations Act (NLRA). Even without union involvement, the employees are covered under the NLRA because their activity is considered to be “protected concerted activity.” The activity is concerted because two or more employees are acting together; it is protected because it involved an appeal to the employer on a matter involving wages, hours or working conditions.

Employers may not retaliate against employees who engage in protected concerted activity. Threatening the employees’ jobs, such as telling them their department could be eliminated, might easily be found to be an unfair labor practice. In addition, attempting to stifle the employees’ protected concerted activity by telling them to keep quiet or quit complaining also could be an unfair labor practice in violation of the NLRA.

So, how should you respond?

First, it might be best to meet with the employees individually. This avoids any risk of inadvertently “recognizing” the group as a bargaining unit.

Second, the conversation can address the individual request for a 5% raise. Treat each individual as if he or she alone had asked for a raise and address each person’s situation uniquely. If any individual raises are in order, make the adjustments. Be sure to avoid any threats. If there are facts to be conveyed, state them in a nonthreatening manner. Be straightforward. For example: The company is laying off workers at this time and managers are under instructions to maintain a freeze on wages.

Finally, make sure you don’t convey any ill will toward the employee for signing the memo.You might say that your door is always open for raise requests, but you can only do what is possible under the circumstances.

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