Thursday, July 30, 2015

Even lone-wolf activity is concerted, according to NLRB

Bonus post today.

We know that the National Labor Relations Act protects employees who engage in protected concerted activity from retaliation. How broadly defined is concerted? According to 200 East 81st Restaurant Corp. [pdf], decided yesterday by the NLRB, concerted is defined pretty broadly.

The issue in 200 East 81st Restaurant Corp. was whether a single employee who files a lawsuit, ostensibly on behalf of himself and other employees, engages in protected concerted activity. The Board answered the question in the affirmative, holding that a lone plaintiff can engage in protected concerted activity via the filing of a lawsuit in which the employees seeks to vindicate the rights of his co-workers:

“By definition, such an action is predicated on a statute that grants rights to the employee’s coworkers, and it seeks to make the employee the representative of his colleagues for the purpose of asserting their claims, in addition to his own. Plainly, the filing of the action contemplates—and may well lead to—active or effective group participation by employees in the suit, whether by opting in, by not opting out, or by otherwise permitting the individual employee to serve as a representative of his coworkers….” (Quoting Murphy Oil USA, Inc. [pdf]).

Specifically, we hold that the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7.

Thus, as long as the intent of the lone-wolf employee is to “initiate, induce, or prepare for group action,” the lone-wolf action is concerted under Section 7.

This case has implications beyond a wage-and-hour collective action. Consider, for example, a lone employee who seeks injunctive relief in court for some work-related issue. Or, perhaps more practically, consider an employee who takes to his or her social network of choice to grip about work, yet receives no comments or replies from co-workers. Under the (il)logic of 200 East 81st Restaurant Corp., if the employee’s social-media posts are for the purpose of initiating, inducing, or preparing for group action, they are protected.

Since social media is, well, social, one could argue that any post written on social media has a group component. After all, Facebook, Twitter, etc., aren’t diaries or self-conversations. They are intended dialogues within one’s network, or with the public at-large. Thus, has 200 East 81st Restaurant Corp. killed any argument against a finding of concerted activity on social media? A fair reading of this case would lead one to that unfortunate conclusion.