“Protected” activity-is it job related?

For a worker to be insulated from company discipline for engaging in activity that the employer has not authorized, the worker's activities must be both concerted and protected. The section of the National Labor Relations Act that grants the four basic labor rights to employees says that employees may act together for their mutual aid or protection. From this it seems logical that any activity that has as a goal the mutual aid or protection of employees, is protected activity. But that is not entirely accurate. Here's why:

Activity must be job-related. Since the NLRA is a labor statute, it must be remembered that any activity that is protected under it will be what might be termed a job related activity. So, if a group of employees are caught robbing a bank one night, for their mutual aid, their activity is not protected since it's obviously not job related. And the company may fire them.

There must be a dispute. In addition to being job-related, if there is no indication of any type of dispute, it will be more difficult for employees to argue that the activity is protected.

Activity must benefit employees. In order for activity to be protected, it must also benefit employees as employees.

Employer motivation. The exercise of protected rights does not insulate an employee from discipline or discharge for other work-related reasons if it is clear that the employer is not acting out of motivation to punish the employee for protected activity.

Employee conduct. Employees, can through their own actions, lose the protection of the law. The National Labor Relations Board has allowed employees certain leeway in the manner in which they conduct themselves when it comes to engaging in protected, concerted activity. However, employee action may lose its NLRA protection when the action becomes derogatory, defamatory, malicious or insubordinate. While flagrant, egregious behavior, such as shouting obscenities in front of others, may not be protected, engaging in verbal conduct that is loud, but not abusive, is probably not going to be enough to justify the loss of statutory protection. In determining whether employee behavior has gone too far, the NLRB looks to see if the action is related to an ongoing labor dispute and whether it is disloyal, reckless or maliciously untrue.

Snooping. The Board has refused to extend the protected status to the activity of snooping. Because management officials have the right to privately communicate with each other over terms and conditions of employment, discharging an employee for activity such as for reading a confidential memo may be lawful.