Tuesday, October 20, 2015

NLRB Expands Definition of "Concerted" Activity Under Section 7 of NLRA

A relatively controversial decision from the National Labor Relations Board ("NLRB") recently expands the definition of the term "concerted," as that term is used in Section 7 of the National Labor Relations Act ("NLRA").

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. 

The charging party in the case, Marjan (Mario) Arsovski, was discharged by his employer after the employer learned of his lawsuit in the United States District Court for the Southern District of New York, on behalf of himself and other similarly situated employees, which alleged certain violations of the Fair Labor Standards Act ("FLSA").  The employer didn't offer any other non-pretextual reasons for terminating Arsovski, thus, the main issue in the case was whether Arsovski was engaged in protected concerted activity when he filed the FLSA lawsuit.  The Board found that he did engage in protected concerted activity.

What stirred controversy in the case is the fact that Arsovski, even though he filed the FLSA suit on behalf of a class of similarly situated employees who work or have worked for the Respondent over a 3-year period of time, the judge found that Arsovski filed the lawsuit without the consent of any other employees.  The meaning of the term "concerted" is "activity by two or more employees."  The Board took care to acknowledge the importance of the issue being presented in the case:

The Board has long held that the filing of a lawsuit by a group of employees is protected activity. See D. R. Horton, 357 NLRB No. 184, slip op. at 2 fn. 4 and cited cases (2012), enf. denied in part 737 F.3d 344 (5th Cir. 2013). However, the Board has never been squarely pre- sented 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. We hold that he is, based on the rea- soning of two recent Board decisions. 
In applying the principles and conclusions in Meyers II, as articulated in both D. R. Horton and Murphy Oil, the Board held 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.  

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