What Is Concerted Activity?
Under the National Labor Relations Act (NLRA), employees (including most non-union employees) have the right to engage in concerted activities for the purpose of mutual aid or protection—such as discussing wages or seeking improvements in workplace conditions. However, not all complaints or discussions are protected.
- Concerted activity means actions taken by or on behalf of a group of employees, or activity that seeks to initiate, induce, or prepare for group action.
- Activities solely related to personal issues—for example, an employee complaining only about their individualized grievance that does not relate to or seek to involve others—generally are not protected as concerted activity under the NLRA.
In the recent Ninth Circuit case NLRB v. North Mountain Foothills Apartments (2025), the court found that discussing pay and poor working conditions with coworkers, which led to broader concern and affected others, was protected. The employee’s conduct was not just about a personal matter—it was relevant to the group and sparked wider discussion among employees.
NLRB’s Role and the Adjudication Process
The National Labor Relations Board (NLRB) enforces the NLRA by investigating charges of unfair labor practices, conducting hearings before administrative judges, and issuing decisions and remedies to protect employee rights. The process is administrative, focused on restoring the employee’s prior position (“make-whole relief”) when rights are violated. If the NLRB finds an employer retaliated for protected concerted activity, possible remedies include reinstatement to the employee’s job, back pay and lost benefits, and cleansing of personnel files and orders requiring posting of notice of rights.
As clarified in both the North Mountain decision and by the NLRB in Thryv, Inc., these remedies are equitable—designed to make the employee whole, not to punish the employer. Under present case law, compensatory or punitive damages generally are NOT available, and there is no right to a jury trial in the NLRB process.
Virginia’s Added Protections: Va. Code § 40.1-28.7:9
Virginia law has added a strong parallel protection. Under Virginia Code § 40.1-28.7:9, it unlawful for employers to discharge or retaliate against employees for inquiring about, discussing, or disclosing their wages or compensation. This law applies regardless of whether there is union involvement. Virginia law also grants employees the right to: file a civil lawsuit in state court and seek remedies including reinstatement, back pay, and “other appropriate relief.”
Takeaway: Employees discussing wages or work conditions for their mutual benefit are protected against employer retaliation under both federal and state law. But purely personal complaints, unrelated to group concerns, may not enjoy such protection. Employers should exercise great caution about disciplining employees for pay or condition-related discussions and seek legal counsel before taking any adverse action.