NLRB Finds that Section 7 Protects Single Employee in Filing Class or Collective Action Lawsuits

The NLRB recently ruled that an employee is engaged in protected concerted activity when he or she individually files a class or collective action lawsuit.  In 200 81st Restaurant Corp., an employee filed a wage and hour lawsuit against her employer.  The employee filed the lawsuit as a collective action, which means that other employees had to opt-in to join the lawsuit.  None of the employee’s coworkers opted-in to the lawsuit, and she was the only named plaintiff.  The company then fired the employee.

The NLRB’s decision in 200 81st Restaurant Corp is an extension of its earlier decision in D.R. Horton.  D.R. Horton involved a case where more than one employee sought to file a class action under the Fair Labor Standards Act.  In 200 81st Restaurant Corp., the NLRB extended the principle even to employees individually filing class and collective action lawsuits because “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.”  The NLRB ordered the company to reinstate the employee with back pay.

This decision is significant because it marks a broadened understanding of Section 7.  This decision also calls into question employment contracts that restrict employees from pursuing class and collective actions.  Recently, an NLRB Administrative Law Judge ruled that Jack in the Box, Inc. violated Section 7 because its employment contracts restricted its employees to individual arbitration and prohibited class and collective action lawsuits.

For more information on Section 7, please contact your labor law counsel.

By Anthony Tucci | December 18, 2015

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