Big changes at NLRB: expansion of Section 7 rights in 2022

Under General Counsel (GC) Jennifer Abruzzo’s leadership, the National Labor Relations Board (NLRB) is poised to dramatically expand the definition of “protected concerted activity” under Section 7 of the National Labor Relations Act (NLRA). The Board also intends to take a tougher stance against employer handbook policies. The sweeping changes are likely to have a significant impact on employers in 2022 and beyond.

Redefining ‘concerted activity’

Traditionally, an activity is “concerted” for Section 7 purposes if it is engaged in by (1) two or more employees, (2) one employee authorized to act on coworkers’ behalf, (3) one employee seeking to induce or prepare for group action, or (4) one employee bringing group concerns to management’s attention.

During the Obama administration, the NLRB expanded the “group concerns standard” in Wyndham Resort Development Corp. In that case, the Board held an employee always engages in protected activity when, in a group setting, she expresses concern about an issue affecting multiple coworkers.

In the 2019 decision Alstate Maintenance LLC, the NLRB reversed Wyndham, holding that merely raising group concerns in a group setting doesn’t always constitute concerted activity. For concerted activity to be found, there must be some evidence of prior or contemporaneous group discussion on the topic.