Last week, the National Labor Relations Board (“NLRB”) decided in 200 East 81st Restaurant Corp. d/b/a Beyoglu 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” of the National Labor Relations Act (“NLRA”). The employee in the case, a waiter, testified that he mentioned filing a lawsuit against his employer to one co-worker, who declined to participate in the proposed lawsuit. When the waiter filed the lawsuit, he did not obtain prior authorization from any other employee. On the day the complaint was served on the employer, the employer removed the waiter’s name from the work schedule and asked him if he expected to work while he was filing a lawsuit. The waiter left the workplace and was never told he could return to work. The Administrative Law Judge found that the employer terminated the waiter’s employment in retaliation for filing the lawsuit, on behalf of himself and other similarly situated employees, alleging violations of the Fair Labor Standards Act (“FLSA”).
The dissent disagreed with the majority’s conclusion that an employee’s filing of a class or collective action automatically equates to protected, concerted activity. The dissent noted that not every non-NLRA class or collective claim “triggers an automatic overlay of NLRA rights and restrictions.” In the dissent’s view, the simple act of filing a class or collective action “does not instantly convert the endeavor into ‘concerted’ or ‘group’ action.” The dissent argued that whether an employment-related class or collective action translates to protected, concerted activity depends on the facts. In this case, the dissent believed that there was no evidence of group or concerted activity and that the discharge should have been handled under the FLSA, which prohibits retaliation against an employee who files a complaint or institutes a proceeding under the FLSA.
Nevertheless, under the majority’s holding, employers should take note that even if there is no evidence of concerted activity, the NLRB will take the position that an employee’s filing of a class or collective action is protected under the NLRA. If an employer takes adverse action against an employee who has filed such a lawsuit, in addition to any relevant retaliation claims, employers may also encounter unfair labor practice charges.