What is Protected Activity Under the NLRA?

The National Labor Relations Act (NLRA) protects employees who engage in political activity for the purposes of labor organizing. However, not all kinds of political activity are considered a “protected activity” under the NLRA, meaning not all activities receive the same kind of legal consideration. So what constitutes a protected activity under the NLRA, and why does it matter whether an activity is considered protected or not?

Defining a Protected Activity

            Under the NLRA, a protected activity is any kind of political activity related to labor organizing, workplace conditions, or terms of employment. This can include simply discussing these issues with fellow workers, or it can mean engaging in active labor organizing for the purposes of forming a union. Certain activities that have been found to qualify as protected activities include:

  • Discussing wages or working conditions
  • Circulating a petition
  • Handing out fliers or pamphlets
  • Refusing to work under unsafe conditions
  • Talking to employer about wages or working conditions
  • Reporting unfair or unsafe conditions to the government
  • Discussing unfair or unsafe conditions with the media

It is worth noting that an activity does not need to occur on an employer’s property or during work hours for it to be protected. An employee terminated for labor organizing after work is just as protected as one doing it during his lunch break. The important thing is that the activity is done to address issues related to the workplace.

Why Does it Matter if Something is a Protected Activity?

It is important if something is considered a protected activity under the NLRA because it determines whether an employer may legally retaliate against that employee for that activity. When an employer punishes an employee for speech that is not considered a protected activity, the NLRA does not apply and the employee will not have legal recourse. When they punished an employee for engaging in a protected activity, on the other hand, an employer can face serious legal penalties, as well as civil action from the employee.

Employees are protected in these kinds of speech because they have a right to organize for their collective benefit. If employers could fire their workers for simply complaining about their working conditions, workers would never be able to exercise that right for fear of retaliation. The NLRA alleviates some of this pressure by creating a legal threat for any employer who refuses to respect their employees’ efforts to exercise their rights.

What Kinds of Activities are Not Protected?

            A political activity is not considered protected by the NLRA if it regards political matters outside the workplace. This means that discussing controversial political subjects not directly related to working conditions, pay or other employment issues can still legally result in reprimand by an employer. Unfairly or not, it does mean the NLRA does not protect an employee from being punished or fired for expressing political opinions their employer does not like.

Additionally, there are certain types of workers that are excluded from the NLRA’s protections. Independent contractors, for example, do not qualify, nor do agricultural workers, railway workers, or government employees. They are either exempted entirely from these protections, or are protected by other laws (railway workers are protected by the Railway Labor Act, for example). If you want to know whether you might be protected by the NLRA, you should consult an attorney knowledgeable on these issues.

If you have gotten into a legal dispute with your employer, it is important that you seek the guidance of an experienced New York employment lawyer who can protect your legal rights and advocate on your behalf. Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer with more than 39 years’ experience handling the many aspects of employment law. To schedule an appointment with New York City employment lawyer Steven Mitchell Sack, call (917) 371-8000.

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