Wednesday, June 18, 2014

NLRB Judge holds that even individual acts can constituted protected concerted activity

Webster’s Dictionary defines “concerted” as, “done in a planned and deliberate way usually by several or many people; mutually contrived or agreed on.” Given this definition, I was surprised when I read a decision by an NLRB Administrative Law Judge, which held that a lone act of one constituted protected concerted activity under section 7 of the National Labor Relations Act.

Marjan Arsovski, a waiter at Beyoglu (a New York City restaurant), filed a wage-and-hour collective action in federal court claiming that his employer failed to pay him, and other similarly situated employees, minimum wage or overtime. His complaint alleged:
Plaintiff on behalf of himself and similarly situated persons who are current and former tipped employees…, who elect to opt in to this action…. FLSA Collective consists of approximately 40 similarly situated current and former employees of Beyoglu, who over the last three years, have been victims of Defendants’ common policy and practices that have violated their rights under the FLSA, by, inter alia, willfully denying them overtime wages.
The employer filed him the same day it received service of the lawsuit. During the termination meeting, Arsovski claimed he was told that the owner did not want him in the restaurant because of the lawsuit.

Even though Arsovski was the only named plaintiff in the lawsuit, the ALJ in 200 East 81st Restaurant Corp. [pdf] concluded that the collective allegations made in the suit were sufficient to constitute protected concerted activity under section 7 of the NLRA.
I have no doubt and conclude that Arsovski was fired because he filed an FLSA lawsuit that was received by the Respondent on the morning of June 25, 2013; the very day that his employment was terminated…. The legal question here is whether in filing the FLSA lawsuit relating to wages, Arsovski was engaged in concerted activity within the meaning of Section 7 of the Act. Or was he acting solely in pursuit of his own interests? …

Clearly, the evidence in this case does not establish that Arsovski acted in concert with, or on the authority of any of the other employees. His lawsuit was not filed with their consent, or except perhaps in one case, even with their knowledge. On the other hand, his Complaint does allege that it was filed on behalf of a class of similarly situated employees who work or have worked at the Respondent over a three year period of time. In this regard, it could be argued that Arsovski sought “to initiate or to induce or to prepare for group action.” …

Therefore, if Arsovski was discharged because the employer believed or suspected that he was engaged in concerted activity that would be sufficient to find a violation of the Act.
This case turns a wage-and-hour retaliation claim into an NLRB protected-concerted-activity charge. I’m confused why Arsovski would file this claim with the NLRB, instead of amending his complaint to add a retaliation claim under the FLSA.

A lawsuit filed by one person does not seem “concerted,” even if the claim seeks concerted relief. It’s neither mutually planned nor agreed upon. Yet, the judge had no problem concluding that Arsovski’s action was a group action. Given the breadth of the NLRB’s recent outreach into non-union workplaces, this case serves as a solid reminder that employer should consider the risk of a potential NLRB charge with all terminations and other adverse actions that involve complaints about work, because, as this case illustrates, the actions of one lone employee can, in the right circumstances, constitute protected concerted activity.

[Hat tip: Wage & Hour Insights]