Articles Discussing Protected Concerted Activity Under The NLRA.

Third Circuit Affirms NLRB’s Totality of the Evidence Test in Finding that a Single Employee’s Conduct Constituted Protected Concerted Activity

On June 23, 2025, in Miller Plastic Products Inc. v. National Labor Relations Board, the Third Circuit ruled that substantial evidence supported the Board’s determination that a single employee’s conduct

Colorado agency issues rules governing the Protections for Public Workers Act (PROPWA), which provides Section 7-type rights to certain Colorado public employees. The rules, which clarify protected activity, reserve certain public employer rights, and establish enforcement mechanisms, take effect July 1, 2024.

Last week, the National Labor Relations Board ruled that Home Depot violated an employee’s rights under Section 7 of the National Labor Relations Act by requiring them to remove the “BLM” (the acronym for “Black Lives Matter”) insignia from their orange work apron.

The National Labor Relations Board (the “NLRB”) recently issued a new decision, Stericycle, Inc., that broadly affects how most employers will think about their employment handbooks and policies. Employer should consider implementing a number of best practices to reduce their risk.

Last May, NLRB General Counsel (GC) Jennifer A. Abruzzo released Memorandum 23-08 claiming employers that require non-compete agreements violate the National Labor Relations Act.

On August 31, 2023, the National Labor Relations Board issued its 3-1 decision in American Federation for Children, Inc. 372 NLRB No. 137, overturning Amnesty International, 368 NLRB No. 112 (2019), and dramatically expanding the definition of what constitutes “protected concerted activity” under Section 7 of the National Labor

The National Labor Relations Board has returned to the “totality of the circumstances” test for determining when individual employee action constitutes protected concerted activity. Miller Plastic Products, Inc., 372 NLRB No. 134 (Aug. 25, 2023). Employee activity will be assessed under the previous tests of Meyers Industries Inc., 281 NLRB 882 (1986), using a holistic, fact-based approach to determine whether individual complaints or protests have a link to group action.

General workplace rules are considered “presumptively unlawful” under the new NLRB standard if they could be interpreted to limit employee rights.

On August 2, 2023, in Stericycle, Inc., 372 NLRB No. 113 (2023), the National Labor Relations Board adopted a strict new legal standard for evaluating the validity of workplace rules under the National Labor Relations Act (“the Act”).

On August 2, the National Labor Relations Board issued its decision in Stericycle, Inc., adopting a new legal standard for how the Board will evaluate workplace rules and policies that are challenged on the grounds that they interfere with or restrict employees’ National Labor Relations Act rights to engage in concerted workplace activity (“Section 7 rights”). The Stericycle decision overrules the previously articulated standard set forth by the Trump NLRB in Boeing Co. (2017) and LA Specialty Produce Co. (2019). The Stericycle decision was decided on a 3-1 basis, with Board Member Marvin Kaplan dissenting.

In Stericycle, the Board held that the prior Boeing/LA Specialty Produce standard established by the Republican-dominated Trump Board permitted employers to adopt overbroad work rules that chill employees’ exercise of their Section 7 rights. “Boeing gave too little consideration to the chilling effect that work rules can have on workers’ Section 7 rights. Under the new standard, the Board will carefully consider both the potential impact of work rules on employees and the interests that employers articulate in support of their rules. By requiring employers to narrowly tailor their rules to serve those interests, the Board will better support the policies of the National Labor Relations Act,” said NLRB Chairman Lauren McFerran.

On August 2, 2023, the National Labor Relations Board (NLRB) adopted a new burden-shifting standard for evaluating whether work rules infringe upon employees’ rights under Section 7 of the National Labor Relations Act (NLRA)—that may require employers to narrowly tailor rules to avoid violating the act.