Under the FLSA, the NLRB Says Even "Non-Concerted" Activity Can Be Concerted


Thumbnail image for restaurantstaff13507427.jpgMy colleagues and I have noted repeatedly over the past couple of years that the National Labor Relations Board takes a very expansive view of the National Labor Relations Act, even (and perhaps especially) when the case does not involve a union or any union activity at all. Recently, an NLRB Administrative Law Judge issued a decision that reminded employers again of that fact. This time, the decision touched on our favorite topic here on the blog, wage and hour. The ALJ found that a restaurant waiter who had filed a lawsuit against his employer claiming violations of the FLSA and state wage and hour laws had engaged in protected, concerted activity protected by the NLRA.

Under the NLRA, employees are protected from retaliation for engaging in activities that are protected by the NLRA if the employees act “in concert” rather than in pursuit of their own interests. In this case, the restaurant had terminated the waiter on the same day it received a copy of the employee’s wage and hour lawsuit in the mail. Terminating the waiter for filing a wage and hour lawsuit creates its own set of problems under federal and state wage and hour laws. However, by terminating the waiter, the restaurant brought itself another one: an unfair labor practice charge before the NLRB.

The ALJ's Decision

The NLRB’s ALJ addressed whether the restaurant terminated the waiter for engaging in “protected, concerted activity” under the NLRA or whether he was fired for something he did for himself only (filing a wage and hour lawsuit). The ALJ had no problems finding that a wage and hour lawsuit is protected under the NLRA. He found that whenever an employee filed a lawsuit “relating to wages,” that employee is engaged in protected activity. However, is filing a lawsuit where you are the only named plaintiff a “concerted activity within the meaning of Section 7” of the NLRA, or is it “acting solely in pursuit of [your] own interests?”  On its face, this seems like an easy issue: the employee filed a lawsuit by himself. No concerted activity, right? Wrong (at least according to the ALJ). The ALJ concluded that although the waiter acted alone, the complaint stated that he had filed his lawsuit “on behalf of a class of similarly situated employees who work or have worked at the [restaurant] over a three year period of time,” and that, even though the waiter did not name any other employee and no other employee was aware of the lawsuit, it “could be argued that [the waiter] sought ‘to initiate or to induce or to prepare for group action.’” The ALJ assumed that when the restaurant read the complaint, it had then assumed that the waiter was acting along with others who could later join the collective action.

The ALJ recommended that the restaurant reinstate the waiter with full back pay and no loss of seniority and that the employer post a notice for employees that they have the right to “file lawsuits on behalf of themselves and others relating to their wages or other terms and conditions of employment.” While the decision could be changed by the NLRB itself (though such an outcome is unlikely) and carries on precedential value, the decision should remind employers that the NLRB’s aggressive outreach extends far beyond union activity. Even non-concerted activity, such as an individual wage and hour lawsuit, could be viewed as “concerted activity.” Employees can seek recourse for retaliation or violations before the friendly NLRB just as easily as they can in the courts.


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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