The National Labor Relations Board (NLRB) continues to expand the meaning of the word “concerted” beyond any ordinary usage of the term. On July 29, 2015, the Board issued its decision in 200 East 81st Restaurant Corp, 36 NLRB 152 (Jul. 29, 2015), ruling that an employee who files an employment-related class action lawsuit engages in protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA), even though the employee has not previously consulted with other employees about the lawsuit. Historically, in order for conduct or activity to be protected under the NLRA, an employee had to show that he or she was engaging in “concerted” activity (historically, group action) for the “mutual aid and protection” of others, rather than solely for his or her own personal benefit.
In 200 East 81st Restaurant Corp., an employee filed a class action lawsuit claiming that his employer had failed to pay overtime wages to him and other current and former employees in violation of the Fair Labor Standards Act. In a subsequent NLRB trial, the administrative law judge found that the plaintiff had filed the class action lawsuit “without the consent of any other employee.” The employer had terminated the employee after it received notice of the suit.
The Board determined that the employee’s lawsuit qualified as concerted activity, finding that the filing of an employment-related class action lawsuit could qualify as engaging in protected concerted activity: “we hold that the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7.” The Board reasoned that because a class action lawsuit seeks to make the named plaintiff a representative of a larger employee class, the filing of such an action contemplates, and might lead to, group participation.
The Board’s decision follows a recent trend of expanding the type of activity or conduct that qualifies as “concerted.” For example, in its controversial decision in D.R. Horton, Inc., 357 NLRB 184 (Jan. 3, 2012), the Board determined that an employer’s arbitration agreement that precluded the filing of class or collective actions for employment-related claims violated Section 7 as an unlawful restriction on the right to engage in concerted activity. The Board explained that employees “who join together” to bring employment-related class action claims in court or before an arbitrator are exercising rights protected by Section 7. The Board also intimated that an individual initiating a class action claim engages in protected conduct, although it did not expressly decide as much, and did not go as far as 200 East 81st Restaurant Corp., in determining that an employee acting entirely alone is engaged in concerted activity simply by filing a class action. Along the same lines, in Fresh & Easy Neighborhood Market, Inc., 361 NLRB 12 (Aug.11, 2014), the Board determined that an employee’s solicitation of co-workers’ assistance in pursuing her own sexual harassment claim against her employer qualified as concerted activity. Even though the claimant was solely attempting to advance her own claims and not any class claims on behalf of her co-workers, and several coworkers had actually resisted the claimant’s efforts in soliciting their assistance, the Board concluded that her conduct, nonetheless, constituted concerted activity reasoning that “next time it could be one of [the co-workers] that is the victim.”
The decision in 200 East 81st Restaurant Corp. pushes the envelope even further. It expands the definition of “concerted” activity to encompass situations where an employee does not even communicate or solicit the assistance of any other employees. The Board itself recognized that its decision was venturing into new waters, explaining, “the Board has never been squarely presented with the question presented here: whether a single employee who files a lawsuit ostensibly on behalf of himself and other employees is engaged in protected concerted activity.”
In his dissent, Board Member Philip Miscimarra expressed his view that the meaning of concerted activity should be limited to what the term reasonably implies, “activity by two or more employees” engaged in mutual aid or protection. Board Member Miscimarra also addressed an additional concern for employers with the decision blurring the distinction between the NLRA and ordinary employment claims: “My colleagues hold today that, whenever a single employee pursues a class or collective action claim or complaint over which the NLRB has no jurisdiction…the employee automatically engages in protected concerted activity under Section 7 of the National Labor Relations Act.”
Going forward, employers need to consider whether an employee’s conduct could be considered to be concerted activity even though the employee is seemingly operating alone. This not only extends to the filing of class and collective action lawsuits, but could be expanded by the Board in the future to include internal complaints or statements that implicate the rights of other employees as well. Employers should consider whether the employee conduct could be construed as an attempt to “initiate, induce or prepare for group action.” Furthermore, employers should be mindful that the mere fact that an employee is asserting other types of employment claims does not mean that the conduct does not fall within the NLRA.
Contributor: Daniel C. Zamora, Attorney at Law | Weintraub Tobin