Both union and non-union employees have the right under federal law to engage in discussions with their colleagues about their terms and conditions of employment, including wages, hours, and working conditions; and to join together to improve these conditions. Low-income, low-educational-attainment, and non-white workers are least likely to feel comfortable discussing workplace conditions with their colleagues.
These rights are often violated. Research suggests that as much as half of the US workforce have been “discouraged or prohibited” from discussing pay.
Meanwhile, neither workers nor unions can enforce these rights by suing the employer. Rather, it’s up to the National Labor Relations Board (“NLRB”) to bring a complaint against the employer, and most claims that workers bring to the NLRB do not result in such a complaint or a hearing in front of an administrative law judge.
This report analyzed all decisions issued by administrative law judges between 2015 and 2020 on “concerted-activity” retaliation complaints brought by individual workers to the NLRB. These were complaints brought by workers who lacked union representation, where the worker says that they tried to band together to improve working conditions but faced retaliation by their employer.
Findings
- 62% of individual non-union employees won reinstatement and backpay from administrative law judges, with 92% of those decisions upheld through subsequent appeals.
- Over 85% of those employee wins had either verbal or written statements of employer hostility to raising concerns (“animus”), evidence that the employer’s stated reason for firing the employee was not legitimate (“pretext”), or both.
- Circumstantial evidence that the employee was treated unfairly was rarely sufficient without additional evidence of pretext or animus.
- Although most credibility determinations in our sample were assessed against the employer, in 61% of employee losses in our sample, the judge expressly identified the charging-party employee as less credible than the employer or employer’s witnesses.
- When employees lost, the most common reason was that their actions were not sufficiently “concerted” or directed at mutual aid. In other words, the employee’s actions were done on their own, and not with and on behalf of co-workers.
Implications for Workers
- Overall, our analysis suggests that the NLRB does vindicate strong claims of retaliatory discharge for efforts to improve working conditions if the complainants can get to an administrative law judge hearing. Although Board-level policy decisions may vary dramatically across Administrations, the average employee win rate before an NLRB judge is more consistent.
- Our data indicates that on these claims, neither the administrative law judges nor the Board are rubber stamps for the NLRB General Counsel who prosecutes these claims.The General Counsel brings only the strongest complaints, and yet administrative law judges still reject nearly four out of ten such claims. The Board overwhelmingly affirms decisions when presented with appeals from both sides.
- Workers need to make sure to raise any concerns both with co-workers and about things that affect co-workers. That is, it can’t be just one worker complaining about her own situation. And documentation of these conversations will help if retaliation follows. Though employees must walk a fine line to frame complaints in a manner that demonstrates collective concern without risking retaliation, the issue should be framed as a complaint, not merely a suggestion, in order to be legally protected.
Legal and Policy Considerations
- While overall win rates before judges are encouraging, workers are entirely dependent on the NLRB to even bring a complaint to a judge at all. Even successful claims take months if not years to get limited relief, in part because of the agency’s chronic underfunding. Congress should increase enforcement of this right by fully funding the NLRB and passing the Protecting the Right to Organize (“PRO”) Act, which would give workers the ability to file a suit against their employer and increase penalties for employers.
- In the meantime, worker advocates can focus on expanding access to these rights by continuing to push the NLRB to recognize the full scope of the rights implied in the Act. Expanding the “inherently concerted” doctrine to include discrimination and health and safety complaints is both consistent with the law and would increase the accuracy of outcomes on such concerted-activity claims.
- Additionally, holding employers accountable for lack of process or consistency is crucial, challenging the common “equal-opportunity jerk” defense and ensuring fair treatment irrespective of an employer’s management practices.
- Finally, the NLRB should make sure that administrative law judges recognize the power imbalances that make raising concerns in an “at will” workplace difficult and not hold employees to an unrealistically high standard of proof in showing concerted activity.
Full Report
Most Americans have the right to talk to their co-workers about their wages and working conditions. But many Americans just don’t know enough about their rights to feel confident having those conversations. Recent surveys suggest that most workers are uninformed or misinformed about their legal rights at work, and employers often exploit that lack of information to discourage workers from raising concerns.[1] Low-income, non-white, and less-educated workers are least likely to feel comfortable discussing workplace problems with their co-workers.[2] Fear of employer retaliation for raising common concerns about working conditions is a major factor that prevents workers from coming forward. A study of California workers revealed that nearly half of those who experienced workplace violations never reported them to anyone, internally or externally – and among those who did not report, a majority indicated that fear of retaliation factored into their decision.[3]
The fear of retaliation is often justified. In American work culture, a squeaky wheel is as likely to be met with the boot as with grease. Depending on the underlying complaint and the worker’s socioeconomic status, they may qualify for free legal aid to challenge their termination, or they may be able to hire an attorney through a contingency fee arrangement. But most people in the United States are subject to at-will employment, meaning they can be fired for any reason without warning or explanation.[4] And while getting fired for blowing the whistle on illegal activities may be prohibited, complaining about important issues like low pay or insufficient staffing doesn’t necessarily confer those same rights.
Unless, that is, you’re talking about it with and on behalf of your co-workers. Section 7 of the National Labor Relations Act (“NLRA”) provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
This means that even employees without a union have the right to engage in discussions with their colleagues about their terms and conditions of employment, including wages, hours, and working conditions. They also have the right to join together to improve these conditions through actions such as a protected strike or picketing, as long as these actions are conducted in a peaceful and lawful manner – regardless of whether they have a union.
Most private employees in the United States have the right to talk to their co-workers about working conditions under the NLRA, and to raise those concerns on behalf of their co-workers to management, without retaliation from their employers.[5] The rights are exclusively enforced through the National Labor Relations Board (“NLRB”), and the remedies are limited to actual damages. Still, the NLRB can demand reinstatement and backpay for a wrongly terminated employee, and an employee can pursue an NLRB charge regardless of whether they signed an arbitration agreement.
But it is unlikely that many employees even know that they have these rights, let alone where to go to seek redress when they are wronged. This is unfortunate, because, in the words of the NLRB’s current General Counsel Jennifer Abruzzo, “[the NLRB is] not pro-union. We’re not pro-employer. We’re pro-worker.”[6] Truth be told, we were skeptical when we started this project. The NLRB is famously underfunded and subject to political winds. But we set out to assess the viability of pursuing an individual charge against a non-union employer at the NLRB.
To do so, we reviewed every concerted-activities claim, brought by an individual in a non-union workplace, addressed by Administrative Law Judges (ALJs) from June 2015 to August 2020. The numbers we found support Abruzzo’s claim: employees challenging unfair termination in NLRB proceedings won 62% of the time before ALJs, with almost all wins meaningfully sustained through subsequent Board decisions and processes.[7] We also tracked which factors the judges paid most attention to making their decisions, and where the cases failed, to try to understand what makes a difference in outcomes.
But our underlying goal – increasing awareness of this right and the NLRB’s role in protecting all workers – is about more than resolving individual retaliation claims, as important as those are. Encouraging co-workers to talk to one another about their working conditions has greater potential to correct the imbalance of power between employers and employees than any individual case, and the breadth of Section 7 protects much more than conversations about wages and hours. Conversations with co-workers are also essential for identifying patterns of systemic discrimination, harassment, and health and safety violations. They offer crucial associational benefits at a moment of increased polarization in our society.[8] They contain the seeds of future labor campaigns and offer benefits to employees themselves. A sense of power at work is strongly correlated not only to job satisfaction but with overall happiness, and free information-sharing among employees can also create a more productive workplace.[9] After pay satisfaction, workers’ assessment of the power they had to change working conditions was the strongest job-related predictor of overall job satisfaction.[10]
But before encouraging workers to talk more about working conditions, we must ensure that they have a meaningful path to enforce their rights and challenge employer retaliation. The data ultimately supports cautious optimism for how such claims fare at the NLRB. Although relatively few of these cases are adjudicated by the NLRB each year, our analysis of these claims suggest that the NLRB can be a promising avenue for employees to successfully challenge retaliatory discharge after complaining about their working conditions.
