In 200 E. 81st Rest. Corp., 362 N.L.R.B. No. 152 (July 29, 2015), the National Labor Relations Board concluded that an employee’s filing of a putative collective action under the Fair Labor Standards Act (“FLSA”) constituted concerted activity under the National Labor Relations Act (“NLRA”), even though the employee filed the lawsuit without the consent of any other employee.
On June 25, 2013, the employer received notice that one of its employees filed a lawsuit in federal court on behalf of himself and others similarly situated, alleging violations of the FLSA. Although the employee filed his complaint as a putative collective action, he did not obtain any authorizations or consents from any current or former employees to file the lawsuit. That same day, when the employee arrived at work, he noticed that his name was not on the work schedule. His supervisors met with him and informed him that they removed him from the schedule because he had filed a lawsuit. The employee went home after the meeting and never returned to work. The employer conceded that it terminated the employee on June 25, 2013.
The Board majority, through Chairman Pearce and Member McFerran, agreed with Administrative Law Judge Green’s conclusion that the employer terminated the employee because he filed a putative collective action under the FLSA. The Board majority also affirmed Judge Green’s finding that the employee engaged in concerted activity when he filed an FLSA lawsuit related to wages, even though “the evidence in this case [did] not establish that [the employee] acted in concert with, or on the authority of any of the other employees.”
In holding that a single plaintiff putative collective action lawsuit qualifies as concerted activity, the Board majority relied on its language in two recent decisions. In the first decision— holding that an employer’s mandatory arbitration agreement was unlawful on its face—the Board noted, “[c]learly, an individual who files a class or collective action regarding wages, hours or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in conduct protected by Section 7.” D.R. Horton, 357 NLRB No. 184 (2012). In the second decision—similarly invalidating another arbitration agreement—the Board stated that “the filing of [a putative collective] action contemplates—and may well lead to—active or effective group participation by employees in the suit….” Murphy Oil USA, Inc., 361 NLRB No. 72 (2014) (emphasis in original). Extending the reasoning in D.R. Horton and Murphy Oil, the Board majority concluded in no uncertain terms that “the filing of an employment-related class or collective action by an individual is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7.”
In dissent, Member Miscarra found that the majority’s decision incorrectly overextended the reach of the NLRA to all non-NLRA class or collective action claims. According to Member Miscarra, because the employee acted alone in filing his lawsuit, he did not engage in concerted activity. Member Miscarra also noted that the employee was not without remedy for his termination, as the FLSA expressly prohibits termination of an employee based on the filing of an FLSA complaint.