Union Rights and Protected Concerted Activity for Nevada Workers

Employees do not have to face workplace problems alone.

When workers are concerned about low wages, unsafe conditions, scheduling practices, benefits, staffing levels, or other employment issues, they may have legal rights to act together to address those concerns.

Many employees associate these rights exclusively with unions. However, federal labor law can protect certain forms of collective workplace activity even when employees are not represented by a union.

For Nevada workers in covered private-sector workplaces, Section 7 of the National Labor Relations Act (NLRA) protects the right to organize, form or assist labor organizations, bargain collectively, and engage in certain concerted activities for mutual aid or protection. Employees also generally have the right to refrain from those activities.

Nevada public employees operate under a different legal framework, including NRS Chapter 288, which governs relations between governments and public employees.

Understanding which rules apply is critical when an employee believes their workplace activity has resulted in discipline, termination, or another adverse employment action.

Key Takeaways

• Most private-sector Nevada employees have rights under Section 7 of the National Labor Relations Act to organize, join or assist a union, and engage in certain concerted activities concerning workplace conditions.
• Protected concerted activity can exist even when employees are not represented by a union.
• Employees may have protection when they act together regarding wages, benefits, schedules, safety, and other employment conditions.
• Employers generally cannot retaliate against employees for protected union or concerted activity.
• Nevada public employees are subject to a separate collective-bargaining framework under NRS Chapter 288.
• Not every workplace complaint, protest, strike, or social-media post is protected.

What Are Union Rights?

Union rights generally refer to employees’ legal rights relating to organizing, joining, supporting, and participating in labor organizations.

For covered private-sector employees, the NLRA protects employees’ rights to:

• Form or join a union
• Assist a labor organization
• Participate in union organizing
• Choose representatives for collective bargaining
• Engage in certain collective workplace activities
• Discuss wages and working conditions
• Refrain from union or concerted activity

The NLRB explains that employees covered by the NLRA have rights to work together to improve wages and working conditions, whether or not they belong to a union.

These protections are particularly important because employees may otherwise fear that organizing or raising workplace concerns could jeopardize their employment.

What Is Protected Concerted Activity?

Protected concerted activity generally involves employees acting together, or acting on behalf of a group of employees, regarding workplace issues.

The activity must generally concern employees’ interests as employees, such as their wages, benefits, working conditions, or other employment-related concerns.

Examples can include:

• Discussing wages with coworkers
• Discussing workplace benefits
• Asking coworkers to support improved working conditions
• Circulating a petition concerning workplace policies
• Raising a group complaint with management
• Acting together over workplace safety
• Communicating with a government agency about workplace problems
• Taking certain collective action concerning working conditions

The NLRB specifically identifies discussions about wages and benefits, petitions concerning working conditions, and certain collective safety complaints as examples of potentially protected concerted activity.

You Do Not Necessarily Need a Union

One of the most important points for Nevada employees to understand is that protected concerted activity does not necessarily require an existing union.

A group of employees may have rights under Section 7 even if they have never organized a union.

For example, imagine several employees discover that they are being paid differently for substantially similar work. They discuss the issue among themselves and approach management together to request clarification.

That activity may potentially qualify for protection because the employees are acting together regarding their employment conditions.

Similarly, employees who collectively raise concerns about unsafe workplace conditions may have protected rights even if they have no union representation.

Can One Employee’s Actions Be Protected?

Yes, in certain circumstances.

Protected concerted activity does not always require several employees to physically participate at the same time.

The NLRB explains that an individual employee may engage in protected concerted activity when the employee is acting with the authority of other employees, bringing a group complaint to management, trying to initiate group action, or preparing for group action.

This distinction can matter when an employee is disciplined for bringing a workplace complaint to management.

The key question may be whether the employee was acting solely for personal reasons or was seeking to address an issue affecting employees collectively.

What Workplace Issues Can Be Protected?

Protected concerted activity can involve many ordinary workplace concerns.

Examples may include:

Wages

Employees may discuss their pay and raise concerns about compensation practices.

Benefits

Workers may collectively address issues involving health benefits, leave, retirement benefits, or other employment benefits.

Scheduling

Employees may work together to raise concerns about schedules, hours, or staffing.

Safety

Workers may collectively raise concerns about unsafe workplace conditions.

Working Conditions

Employees may act together regarding policies and practices affecting their employment.

The NLRB specifically recognizes employee discussions about wages as protected activity under the NLRA.

Can an Employer Fire Someone for Union Activity?

Generally, an employer covered by the NLRA cannot discharge or otherwise discriminate against employees because they engage in protected union activity or protected concerted activity.

The NLRB identifies termination, discipline, threats, adverse assignments, layoffs, and other adverse actions based on protected activity as potential violations of the NLRA.

However, employees do not receive unlimited protection for everything they say or do during a workplace dispute.

The specific facts matter.

What Employers Cannot Do

The NLRA restricts certain employer conduct involving employees’ protected rights.

For example, employers generally cannot:

• Threaten employees because they support a union
• Threaten employees for engaging in protected concerted activity
• Promise benefits to discourage union support
• Spy on protected union activity
• Create the impression that employees are being monitored
• Discharge employees because of protected activity
• Discipline employees because they exercised protected rights
• Interfere with employees’ Section 7 rights

The NLRB identifies these types of conduct as potential unfair labor practices.

Union Organizing and Collective Bargaining in Nevada

For private-sector employees covered by the NLRA, union organizing can begin long before a union is formally recognized.

Employees may discuss whether they want union representation, communicate with coworkers, distribute information, and participate in organizing activities subject to applicable legal limitations. Employers cannot lawfully interfere with employees’ protected organizing rights.

If employees select a union as their bargaining representative, the employer and union generally have a duty to bargain in good faith over mandatory subjects such as wages, hours, benefits, and working conditions. However, the duty to bargain does not require either side to agree to a particular proposal or make concessions.

What Are Weingarten Rights?

Employees who are represented by a union may have an important additional protection during certain workplace investigations.

These are commonly called Weingarten rights.

Under current NLRB law, a union-represented employee may request union representation during an investigatory interview when the employee reasonably believes the interview could result in discipline.

For example, an employee may be asked to attend a meeting concerning:

• Alleged workplace misconduct
• Attendance issues
• Performance concerns
• Safety violations
• Policy violations
• Other conduct that could result in discipline

If the employee reasonably believes the meeting could lead to discipline, the employee may request union representation.

It is important to understand that Weingarten rights are currently limited to union-represented employees under existing Board law.

Strikes, Pickets, and Workplace Protests

The NLRA protects certain strikes, picketing, and workplace protests concerning employment issues.

Importantly, the right can apply to employees whether or not they belong to a union.

However, the right to strike is not unlimited.

The legality of a particular strike can depend on:

• The purpose of the strike
• Timing
• Applicable collective bargaining agreements
• Whether required notices were provided
• The employees’ conduct
• Whether the strike violates applicable labor law

Employees can potentially lose NLRA protection for serious misconduct, violence, threats, property destruction, or certain other unlawful conduct.

Therefore, employees should not assume that every workplace walkout is legally protected.

Social Media and Protected Workplace Discussions

Employees increasingly use social media to discuss workplace problems.

A social-media post may potentially constitute protected concerted activity when it involves employees working together to address employment-related concerns.

Examples might include employees collectively discussing:

• Pay
• Benefits
• Scheduling
• Workplace safety
• Staffing
• Working conditions

However, not every negative comment about an employer is protected.

The NLRB explains that employees may lose protection for certain misconduct, including egregiously offensive conduct or knowingly and maliciously false statements.

The context of the communication matters.

When Does Concerted Activity Lose Protection?

Protected concerted activity has limits.

An employee may potentially lose statutory protection when conduct crosses legal boundaries.

Issues can arise when an employee engages in:

• Violence
• Threats
• Serious intimidation
• Property destruction
• Knowingly maliciously false statements
• Certain forms of egregious misconduct
• Conduct unrelated to employees’ interests as employees

The NLRB specifically recognizes that otherwise protected activity can lose protection because of misconduct.

This means an employee should not assume that being involved in a workplace dispute automatically protects every action taken during that dispute.

What About Nevada Government Employees?

Nevada public employees require a separate analysis.

The NLRA generally governs private-sector labor relations, while Nevada public employees have collective-bargaining rights under NRS Chapter 288 and related provisions.

Nevada law provides qualifying public employees with rights to organize, form, join, and assist labor organizations, engage in collective bargaining, and participate in other concerted activities for mutual aid or protection. Public employees also have the right to refrain from such activity.

Therefore, a Nevada state or local government employee should not automatically assume that the same rules governing a private-sector employee apply to their workplace.

The appropriate legal analysis depends on the government employer, employee classification, applicable bargaining unit, and specific conduct involved.

What If Your Employer Retaliates?

Retaliation can take many forms.

An employee may have concerns if, shortly after participating in protected union or concerted activity, the employer:

• Terminates employment
• Suspends the employee
• Issues unusual discipline
• Reduces hours
• Changes working conditions
• Demotes the employee
• Denies an otherwise expected opportunity
• Threatens the employee
• Subjects the employee to increased scrutiny

The timing of an adverse action can be relevant, although timing alone does not necessarily establish unlawful retaliation.

Under the NLRA, employers may not discharge, discipline, demote, or otherwise take adverse action against employees because they engaged in protected concerted activity or because of protected union activity.

What Should Employees Do If They Believe Their Rights Were Violated?

Employees who believe they have experienced retaliation should consider preserving relevant evidence.

Useful records may include:

• Emails
• Text messages
• Workplace communications
• Union communications
• Disciplinary notices
• Performance evaluations
• Work schedules
• Written complaints
• Names of witnesses
• Copies of relevant workplace policies

Employees should avoid altering, deleting, or fabricating records.

A clear timeline can also be useful. Record when the protected activity occurred, who participated, what was communicated, and what happened afterward.

Depending on the circumstances, an employee may have rights or remedies through the NLRB, a collective bargaining agreement, Nevada law, or another legal framework.

Employer Best Practices

Employers should take care when responding to union activity and employee group complaints.

Employers should generally:

• Avoid threatening employees because of protected activity
• Avoid interrogating employees improperly about union activity
• Avoid retaliatory discipline
• Apply legitimate workplace policies consistently
• Train supervisors on labor-law requirements
• Preserve relevant records
• Distinguish individual complaints from concerted activity
• Consult counsel when significant labor disputes arise

The NLRB specifically identifies threats, coercive questioning, surveillance, promises of benefits intended to discourage union activity, and adverse employment actions based on protected activity as potential violations.

Why Legal Guidance Can Be Important

Union and concerted-activity disputes can involve overlapping legal questions.

An employment attorney can evaluate:

• Whether the employee’s conduct was concerted
• Whether the conduct was protected
• Whether union rights were implicated
• Whether retaliation occurred
• Whether a collective bargaining agreement applies
• Whether Weingarten rights were involved
• Whether the employee is covered by the NLRA
• Whether Nevada public-sector labor law applies
• Potential administrative or legal remedies

The distinction between a protected workplace complaint and an unprotected individual dispute can be particularly important.

Frequently Asked Questions

About Attorney Milan Chatterjee

This article was prepared by Milan Chatterjee, a Nevada and California licensed attorney and founder of Best Employment Attorney, the dedicated employment law practice of Milan Legal.

Milan represents employees and employers throughout Las Vegas, Reno, and across Nevada in workplace disputes involving employee rights, retaliation, wrongful termination, workplace discrimination, employment agreements, union-related employment issues, and compliance with applicable Nevada and federal employment laws.

He earned his Juris Doctor from UCLA School of Law and also studied at New York University School of Law as a visiting student. Before entering private practice, Milan served as Associate Compliance Counsel at Las Vegas Sands Corporation, where he advised on employment policies, workplace investigations, regulatory compliance, corporate governance, and enterprise risk management.

Today, Milan combines that corporate legal experience with a focused employment law practice, helping employees understand and protect their workplace rights while advising employers on employment-law compliance throughout Nevada.

Questions About Union Rights or Workplace Retaliation?

If you believe you were disciplined, terminated, or otherwise treated adversely after participating in union activity or acting with coworkers over workplace conditions, schedule a confidential consultation to discuss your circumstances.

Conclusion

Nevada workers may have important legal protections when they organize, join unions, discuss workplace conditions, or act together to address employment concerns.

For covered private-sector employees, Section 7 of the NLRA protects significant forms of union and concerted activity. Those protections can apply even when employees do not belong to a union.

At the same time, these rights have limitations. The purpose of the activity, the employee’s conduct, applicable agreements, and the employee’s status can all affect whether legal protection applies.

Nevada public employees require a separate analysis because their collective-bargaining rights are governed by Nevada’s public-sector labor laws, including NRS Chapter 288.

If an employee believes protected activity resulted in retaliation or discipline, reviewing the facts promptly can be important because different legal processes may have different requirements and deadlines.