Employee’s Pay Complaints to Passive Coworkers May Be Protected Concerted Activity

Among the latest batch of Advice Memoranda from the National Labor Relations Board, the Office of General Counsel (OGC) offers further guidance to employers, both unionized and non-union on the issue of when discussions about pay are protected by the National Labor Relations Act. Advice Memoranda contain the recommendations of the OGC to the Board on specific issues.

Under the NLRA, employees may engage in concerted activity regarding the terms and conditions of employment, and the Board has found that this protection to extend to discussions about pay. On the other hand, there is no protection for individual gripes. In Gallup, Inc., the company reclassified its quality assurance coordinators from exempt to non-exempt and cut their base salary by $7000. One QA coordinator complained to his fellow QA coordinators about the change, who responded “with at most passive agreement rather than a willingness to join [that employee] in seeking concrete action.” Nonetheless, the OGC found that the employee’s actions were protected under the Act.