Protected Concerted Activity

The legal right of employees — union and non-union alike — to discuss wages, working conditions, and workplace concerns with coworkers, protected under the National Labor Relations Act.

Protected concerted activity (PCA) is a foundational right guaranteed by Section 7 of the National Labor Relations Act (NLRA) of 1935. It gives employees the right to act together — or 'in concert' — to address wages, hours, and other working conditions, and protects those actions from employer retaliation. The critical and widely misunderstood dimension: this protection applies to virtually all private-sector employees, whether or not they belong to a union or work at a unionized company. An employer who fires, disciplines, or threatens an employee for discussing pay with a coworker has likely committed an unfair labor practice, regardless of any company policy prohibiting salary discussions.

The NLRA distinguishes between individual complaints and concerted activity. A single employee complaining about their own working conditions generally does not qualify as protected concerted activity — it lacks the 'concerted' element. However, courts and the National Labor Relations Board (NLRB) have interpreted 'concerted' broadly: activity is concerted if it is engaged in with other employees, on behalf of other employees, or if it is the logical outgrowth of prior collective discussions. An employee who raises a pay concern in a group meeting, or who shares a salary to help a colleague negotiate, or who organizes coworkers around a shared grievance is almost certainly engaging in protected concerted activity.

Many employers maintain policies that, while appearing neutral, effectively restrict protected concerted activity — and these policies are illegal to enforce. Blanket salary confidentiality policies that prohibit all wage discussions among employees violate the NLRA. Social media policies that prohibit employees from discussing the company publicly in ways that could harm its reputation can run afoul of the NLRA if they sweep up discussions about working conditions. Policies that prohibit recording in the workplace can similarly be unlawful if they prevent employees from documenting evidence of workplace violations. The NLRB actively reviews and challenges overly broad employer policies.

Importantly, protected concerted activity has limits. It does not protect employees who engage in illegal conduct, who deliberately provide false information to damage the employer, who behave in a disruptive manner unrelated to workplace concerns, or who disclose genuinely confidential business information (trade secrets, client lists) in the guise of workplace advocacy. Managers and supervisors are explicitly excluded from NLRA protection — the Act's protections run to non-supervisory employees. And certain industries (railroad, airlines) are covered by different labor law frameworks. But for the vast majority of private-sector workers, PCA represents meaningful legal protection for collective workplace advocacy.

What Is and Isn't Protected

  • Protected: discussing salary and pay with coworkers, even if the employer has a policy against it.
  • Protected: organizing coworkers to sign a petition, write a group letter, or collectively complain to management about working conditions.
  • Protected: posting on social media about working conditions at your company, provided the posts are not purely personal venting disconnected from collective concerns.
  • Protected: refusing to work in conditions you reasonably believe are unsafe, if done in concert with coworkers.
  • Not protected: individual complaints about your own situation with no connection to collective concerns.
  • Not protected: disclosing trade secrets or genuinely confidential proprietary information in the guise of workplace advocacy.
  • Not protected: conduct that is insubordinate, disruptive, or involves harassment — the law protects the activity, not all behavior during it.
  • Not protected: managers and supervisors (defined by NLRA as those with authority to hire, fire, discipline, direct, or assign other employees).

Salary Confidentiality Policies

  • A company policy stating 'employees may not discuss their salaries' is illegal to enforce against non-supervisory employees — it directly interferes with a Section 7 right.
  • This is one of the most commonly violated employment law provisions — many employees don't know they have this right and many employers have never updated their policies.
  • Separate from NLRA: some states (California, Colorado, New York, and others) have enacted explicit pay transparency laws that also protect wage discussions — these provide additional legal protection on top of the NLRA baseline.
  • Employers CAN require employees not to disclose other employees' pay if they learn it through a role requiring access to payroll records — the protection is for voluntary disclosure among employees, not for those with administrative access.
  • If you're disciplined for discussing pay with coworkers, file a charge with the NLRB within 6 months of the adverse action.

Filing an Unfair Labor Practice Charge

  • If you believe you've been retaliated against for protected concerted activity, file an unfair labor practice (ULP) charge with the NLRB at nlrb.gov — it's free.
  • You must file within 6 months of the conduct you're challenging (the discriminatory act).
  • An NLRB field agent will investigate; if they find merit, the NLRB can seek reinstatement, back pay, and rescission of the offending policy.
  • You can also consult an employment attorney — retaliation for protected concerted activity can be pursued in some states under state law as well.
  • Workers don't need a union to file an NLRB charge — any private-sector employee can do so.

Example

Three engineers at a startup begin discussing their salaries over Slack after learning that a newer hire received a significantly higher offer. Their manager discovers the conversation and warns all three in writing that discussing compensation violates company policy and could result in termination. All three employees have engaged in protected concerted activity — the warning itself is an unfair labor practice. The salary confidentiality policy is unenforceable. Any of the three can file an NLRB charge within 6 months. The company would likely be required to rescind the warning letters and post a notice of employees' rights.