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NLRB: A Sole Employee Filing a Class Action Lawsuit is Protected Concerted Activity

The National Labor Relations Board’s (“NLRB”) definition of the word “concerted” is beginning to extend past its common sense meaning. The NLRB has been expanding what counts as “concerted” activity under Section 7 of the National Labor Relations Act (“Section 7”) to cover a multitude of activities lately, and in 200 E. 81st Restaurant Corp., it stretches the definition just a bit farther.

Gavel on court deskIn 200 E. 81st Restaurant Corp, the plaintiff believed that the restaurant he worked for violated provisions of the Fair Labor Standards Act (“FLSA”) with respect to tipped employees. He filed a class-action lawsuit on behalf of himself and others similarly-situated. Upon notification of the suit, plaintiff’s employer fired him. Instead of filing a FLSA retaliation claim, plaintiff alleged a violation of Section 7 of the NLRA which prohibits employers from interfering with concerted employee activity. Despite the fact that plaintiff filed the class action suit without the support or consent of any of the other employees, the NLRB determined that plaintiff’s actions constituted “concerted” activity. The NLRB based its decision upon language from a prior holding in D.R. Horton[1] that stated,“[c]learly, an individual who files a class or collective action regarding wages, hours or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in conduct protected by Section 7.”

For the time being Section 7 clearly protects employees who file class actions over employment conditions. The NLRB continues to find new and interesting ways to apply Section 7 to non-union activity, and the 200 E. 81st Restaurant Corp. decision is yet another expansion of the boundaries of the National Labor Relations Act. For more information on Section 7 and the ways the NLRB is interpreting the NLRA, contact the attorneys at McBrayer today.

Ben RiddleBenjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com

This article is intended as a summary of federal or state law or regulation and does not constitute legal advice.

[1] D. R.Horton, 357 NLRB No. 184,737 F.3d 344 (5th Cir.2013).

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