Federal labor law protects employees who act together for mutual aid or protection concerning terms and conditions of employment. The protection applies to most private-sector employees whether or not a union is present, which regularly surprises non-union employers.

Concerted means with or on the authority of other employees, not solely by and on behalf of the individual — though an individual raising a group concern, or seeking to initiate group action, can qualify.

Typical protected conduct. Discussing pay among colleagues, complaining jointly about scheduling or safety, circulating a petition, and posting on social media about working conditions in a way that seeks to involve co-workers.

Policies at risk. Blanket confidentiality of wages, broad social media rules, sweeping non-disparagement clauses, rules requiring civility in overbroad terms, and confidentiality directives covering ongoing investigations have all drawn scrutiny. Narrow drafting with a legitimate justification is the answer.

Losing protection. Conduct can be so opprobrious, disloyal, or damaging to the employer’s product reputation that it forfeits protection, but the margin is narrower than managers assume.

Severance agreements containing broad confidentiality and non-disparagement terms have been challenged on this basis. Carve-outs preserving the right to engage in protected activity and to communicate with agencies are now standard for good reason.