Administrative Law Judge Finds Bringing A Class Action Lawsuit For Unpaid Wages Is Protected, Concerted Activity Under The National Labor Relations Act


In 200 East 81st Restaurant Corp. and Arsovski, an Administrative Law Judge (ALJ) with the National Labor Relations Board (NLRB) found that an employee who filed a class action wage and hour lawsuit seeking recovery of unpaid overtime wages on behalf of himself and similarly situated employees engaged in protected, concerted activity under the National Labor Relations Act (NLRA).  The employee filed an unfair labor practice charge after he was terminated on the day that the lawsuit was filed.  The NLRA prohibits employers from taking adverse action against an employee (even a non-union employee) when that employee acts in concert with other employees in raising complaints about the terms and conditions of employment.  This ALJ decision is significant because the employee was non-union and the ALJ found that the filing of the complaint itself was concerted activity under the NLRA even though other employees had not yet joined the lawsuit.  Although the ALJ’s decision is subject to appeal before the NLRB, this decision is another involving a non-unionized workforce and expanding employee rights into unexpected areas.  This development is a reminder that employers should not overlook the potential applicability of the NLRA to employee conduct in both union and non-union settings, especially when taking adverse action against employees who have potentially engaged in protected, concerted activity.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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