NLRB’s Division of Advice Concludes That Employee’s COVID-19 Policy Complaints Are Not Protected Concerted Activity

On June 15, 2021, the Office of General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released an Advice Memorandum, explaining that an Illinois pub did not commit an unfair labor practice when it fired an employee who had previously complained about the pub’s COVID-19 safety policies, because the employee’s complaints did not constitute “protected concerted activity,” as defined under the National Labor Relations Act (“NLRA”). The NLRA protects employees engaged in concerted activity, including participating in union activities and union organizing and other activities that the Board considers to be for their mutual aid and protection. Peter Sung Ohr, since his appointment as the NLRB’s Acting General Counsel following the discharge of his predecessor, Peter Robb, by President Joseph Biden, has taken a far broader view than his predecessors as to the types of subjects to which Section 7 of the NLRA’s protections apply. In the light of the COVID-19 pandemic, however, what constitutes concerted activity remains uncertain. The Advice Memorandum sheds light on how the Board may define concerted activity moving forward in the context of employee responses to COVID-19 workplace policies.

The Facts

While preparing to reopen, after temporarily closing for the pandemic, the owner of a pub in Illinois (“the Employer”) held a staff meeting during which a bartender (“the Employee”) complained about the Employer’s decision not to pay employees for certain time spent cleaning. In a subsequent text message exchange with a manager and another bartender, the Employee asked whether the Employer’s decision to not require employees to wear face coverings conflicted with the local government guidance.

After the pub reopened, the Employee continued to raise concerns to a supervisor regarding compliance with local COVID-19 ordinances and what the Employee claimed was the risk of allowing customers inside the pub rather than limiting their access to the outside patio. The Employee later informed their supervisor that they would only feel safe returning to work if the Employer changed its COVID-19 policies and limited patrons to the patio area. The Employer terminated the Employee, and told the Employee it was due to their unwillingness to return to work.

The Employee then filed an unfair labor practice charge with the NLRB’s Regional Office, which elevated the issue to the Division of Advice at the Office of the Board’s General Counsel to seek guidance on what the Regional Office saw as a novel question.

The General Counsel’s View

The Division of Advice concluded that the Employee’s complaints were not protected concerted activity because “there [was] no evidence [the Employee] discussed these concerns with other employees or otherwise involved them in [the Employee’s] efforts.”

The Division of Advice noted that while the Employee’s complaints regarding pay during the staff meeting “arguably constituted protected concerted activity,” it ultimately found no evidence that those complaints were the real reason for the Employee’s discharge. The Employee’s pay complaints “bore no relation to” the Employee’s later concerns regarding customers being allowed inside the pub.

The Division of Advice also concluded that the Employee’s text message exchange with a manager and another bartender regarding whether the Employer would require employees to wear face coverings while at work did not constitute concerted activity. In doing so, the Advice Memorandum explained that (i) the Employee only asked whether the Employer’s face covering policy conflicted with local guidance and did not complain to the manager, and (ii) the Employee had not engaged in any activities with the other bartender for their mutual aid or protection. Accordingly, the Division of Advice concluded that the evidence did not satisfy the NLRB’s Wright Line standard, which requires demonstrating that a causal connection exists between an adverse employment action and known employee activities that are protected by Section 7 of the NLRA. Thus, the Employer did not commit an unfair labor practice by discharging the Employee.

Potential Impact on Employers

The reasoning set forth in this Advice Memorandum suggests how the NLRB is likely to analyze employee complaints about workplace safety matters in the COVID-19 era and whether and in what circumstances such complaints may be held to constitute protected concerted activity under the NLRA. As we continue to navigate a return to on-site work by a greater number of employees, employers are likely to face increasing questions and complaints regarding COVID-19 safety policies and practices. Despite Acting General Counsel Ohr’s broader view of the types of employee conduct that are protected by Section 7 of the NLRA, employee questions and complaints regarding COVID-19 safety policies and practices are unlikely to constitute protected concerted activity unless the questions and complaints are intended to improve conditions of employment and occur in a group setting or on behalf of, or in concert with, other employees.

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Alexandria Adkins, a 2021 Summer Associate (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.