NLRB Restores Right of Paid Employees to Advocate on Behalf of Unpaid Interns and Volunteers

On August 26, 2023, the National Labor Relations Board (“NLRB”) issued American Federation for Children, Inc., 372 NLRB No. 137 (2023) restoring protections for employees who show support for nonemployees, including unpaid interns working alongside them.

The NLRB’s decision in American Federation for Children, Inc. involved an employee, Sarah Raybon, whose employment was terminated for appealing to other employees to support the rehire of a nonemployee, Gaby Ascencio. The NLRB held Raybon’s concerted activity was for “mutual aid or protection” under Section 7 of the NLRA, regardless of whether Ascencio was a statutory employee, and specifically overruled Amnesty International, 368 NLRB No. 112 (2019). The NLRB reasoned that the relevant inquiry is not whether the worker being advocated for is a statutory employee; rather, the question is simply whether the worker taking the action could improve their own working conditions in doing so. As a potential coworker, Ascencio could help Raybon and other employees, and Ascencio’s return to work by itself could potentially benefit Raybon and her fellow employees because they valued her as a coworker.

In Amnesty International, which American Federation for Children, Inc. overturns, a number of paid staff joined a petition circulated by Amnesty’s unpaid interns seeking compensation for their volunteer work. In response to the petition, Amnesty’s director stated that she was “disappointed” that the petition signers had not chosen to utilize the open door policy, and that she did not think the petition was “appropriate” as it was “litigious” and “adversarial.” However, the Board ruled that the director’s actions did not violate federal labor law, because the paid staff employees were advocating solely on behalf of unpaid interns, who are not themselves “employees” within the meaning of the NLRA. Thus, the actions of the paid employees were not for their own “mutual aid or protection,” and were unprotected. Thankfully, after American Federation for Children, Inc., this is no longer the state of the law.

American Federation for Children, Inc. also reaffirmed established precedent that job applicants are statutory employees and that the immigration status of workers is typically immaterial to employee status under the NLRA.

This holding has the potential to affect employers, especially in the nonprofit sector, who rely heavily on unpaid interns because it broadens protections for actions that employees may take on behalf of other employees or nonemployees. For questions regarding protected concerted activity or other related conduct, contact your labor law counsel.