NLRB Protects Class-Action Filers from Retaliation

August 31, 2015 by Andrew Baker

A non-union employee files a class action lawsuit against his employer on behalf of himself and his co-workers claiming wage and hour violations.  The employer retaliates by firing the employee.  Is there any legal protection for the employee?  “Yes,” says the NLRB.  In another example of how the NLRB protects non-union and union workers alike, the Board has issued a decision ruling that individual employees who file class action employment lawsuits, even when they file alone, are protected from employer retaliation.

The Board has long held that the filing of a lawsuit by a group of employees is activity protected by the National Labor Relations Act.  The Board in Beyoglu, 362 NLRB No. 152, addressed for the first time whether the NLRA also protects a single worker who, on his/her own and without the participation of other workers, files a lawsuit on behalf of him/herself and other employees.

The NLRA protects employees from retaliation for engaging in “concerted” activity that addresses employment conditions.  One worker engages in “concerted” activity when s/he does something together with co-workers, or when s/he does something to solicit or encourage other workers to take action.  If this “concerted” activity is designed to address wages, hours or working conditions, the activity is protected by the NLRA.

In ruling that the NLRA’s protection extends to an individual acting alone to file a class or collective action regarding wages, hours or working conditions, the Board emphasized such lawsuits inherently contemplate and induce group action.  Thus, the Board concluded, an employee acting alone to file a class action employment lawsuit is engaged in the type of “concerted” activity designed to address employment issues that the NLRA protects.

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