The National Labor Relations Board has held that a casino operator violated Section 8(a)(1) of the Act by forbidding a former employee from “socializing” at one of its nightclubs after she joined a Fair Labor Standards Act (FLSA) class action lawsuit. In MEI-GSR Holdings, LLC dba Grand Sierra Resort & Casino, 365 NLRB No. 76 (May 16, 2017), the Board majority ruled:
[T]he relevant question under Section 8(a)(1) is not whether the Respondent affected Sargent’s wages, hours, or terms and conditions of employment, but whether (in the words of the Act) the Respondent has “interfere[d] with, restrain[ed], or coerce[d] employees in the exercise of the rights guaranteed in section 7.” As explained, the Respondent’s actions, taken in response to Sargent’s protected lawsuit, would have reasonably tended to interfere with employees’ exercise of their statutory rights.
The former employee at issue, Tiffany Sargent, worked for the casino for two weeks. Following the conclusion of this very brief employment, she continued to hang out at one of the casino’s nightclubs. Approximately eighteen (18) months later, Ms. Sargent and another employee filed a class and collective FLSA action against the casino on behalf of themselves and similarly situated employees. A year after the filing of the suit, the casino began denying her access to the nightclub and expressly referring to the litigation. The Board held:
The Respondent’s exclusion of Sargent, in response to her participation in protected concerted activity, would reasonably tend to chill employees from exercising their Section 7 rights. Upon observing or learning of this targeted action against the lead plaintiff in the FLSA lawsuit, the Respondent’s employees reasonably would conclude they, too, might be subject to reprisals and reasonably would be deterred from participating in a work-related lawsuit or other protected concerted activity.
Chairman Miscimarra filed a dissent, disagreeing that the ban, to the extent motivated by the pendency of non-NLRA litigation, violated the NLRA. The dissent argued that there were other employees pursuing the FLSA action who were not similarly banned from the nightclub, and that the employer had many legitimate business interests which would justify its actions. In sum, the Chairman concluded:
I do not believe that Congress, when enacting the NLRA, intended to guarantee that every former employee would have a right of access to the private property of his or her former employer whenever he or she joined other employees in a non-NLRA lawsuit against that former employer.