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NLRB Says Filing Class Action Lawsuit is Protected Concerted Activity

    Client Alerts
  • August 17, 2015
Section 7 of the National Labor Relations Act prohibits employers from discriminating or retaliating against employees who engage in protected concerted activity. Concerted Activity means actions involving terms and conditions of employment, involving more than one employee. Last month, the National Labor Relations Board concluded that an employee who filed a collective action lawsuit under the Fair Labor Standards Act engaged in concerted activity despite the lack of evidence of any other employee who consented to the claim.

In 200 E. 81st Restaurant Corp., the plaintiff alleged that the restaurant had violated FLSA rules involving tipped employees. He filed a concerted activity claim on behalf of himself and other employees (FLSA class actions are called collective action claims), but the lawsuit did not indicate the consent of any other employee to the filing. The plaintiff alleged that he was removed from the restaurant’s schedule as a result of the filing.

Of course, the plaintiff could have filed a retaliation claim under the FLSA. However, he also alleged a Section 7 violation. The NLRB agreed, concluding that the filing constituted protected concerted activity despite the fact that no other employee participated. The dissent noted that the plaintiff had independent retaliation protection under the FLSA and that Section 7 does not cover FLSA collective action claims.

This decision means that employees who file class or collective action claims have another legal route in the event they believe that they have been retaliated against as a result of the filing. This right exists even in situations where the employee takes it upon himself or herself to file the suit in the absence of any indication that any other employee shares the belief that the employer violated their legal rights.