FLSA Collective Action by Single Employee Ostensibly on Behalf of Other Employees Is Protected Concerted Activity: NLRB | Practical Law

FLSA Collective Action by Single Employee Ostensibly on Behalf of Other Employees Is Protected Concerted Activity: NLRB | Practical Law

In 200 E. 81st Rest. Corp. d/b/a Beyoglu, the National Labor Relations Board (NLRB) held that a single employee bringing a collective action on behalf of himself and other employees under the Fair Labor Standards Act (FLSA) has engaged in protected concerted activity under the National Labor Relations Act (NLRA).

FLSA Collective Action by Single Employee Ostensibly on Behalf of Other Employees Is Protected Concerted Activity: NLRB

by Practical Law Labor & Employment
Published on 04 Aug 2015 • USA (National/Federal)
In 200 E. 81st Rest. Corp. d/b/a Beyoglu, the National Labor Relations Board (NLRB) held that a single employee bringing a collective action on behalf of himself and other employees under the Fair Labor Standards Act (FLSA) has engaged in protected concerted activity under the National Labor Relations Act (NLRA).
On July 29, 2015, in 200 E. 81st Rest. Corp. d/b/a Beyoglu (Beyoglu), the panel (Board) heading the NLRB's judicial functions held that a single employee bringing a class or collective action on behalf of himself and other employees under the Fair Labor Standards Act (FLSA) has engaged in protected concerted activity. The Board affirmed the decision by an NLRB administrative law judge (ALJ) that the employee was discharged from his job in retaliation for filing the FLSA lawsuit. (362 N.L.R.B. slip op. 152 (July 29, 2015).)

Background

Marjan Arsovski, an employee of Beyoglu, filed a lawsuit in US district court on behalf of himself and other similarly situated employees alleging several violations of the FLSA and New York Labor Law. However, Arsovski filed his suit without the consent of any other employees.
Arsovski claimed that his employer violated the NLRA by terminating his employment in retaliation for his filing of the FLSA lawsuit.
An NLRB ALJ:
  • Found that the employer terminated Arsovski's employment because he had filed the FLSA lawsuit.
  • Dismissed, as pretextual, the reasons asserted by the employer for Arsovski's termination.
Beyoglu filed exceptions, and the General Counsel filed cross-exceptions. The issues before the Board were whether:
  • Beyoglu terminated Arsovski's employment in retaliation for his filing an FLSA suit.
  • Arsovski engaged in protected concerted activity when he filed the lawsuit.

Outcome

The Board majority (Chairman Pearce and Member McFerran):
  • Affirmed the ALJ's rulings and findings that Beyoglu violated the NLRA when it terminated Arsovski's employment in response to his filing of an FLSA lawsuit.
  • Held, in a matter of first impression for the Board, that a single employee filing a lawsuit ostensibly on behalf of himself and other employees has engaged in protected concerted activity.
The Board majority:
In a dissenting opinion, Member Miscimarra:
  • Agreed with the majority that Arsovski was fired in retaliation for his FLSA lawsuit, but noted that this action was prohibited by the FLSA, over which the Board has no jurisdiction, not by the NLRA.
  • Disagreed with the majority's finding that a single employee filing a class action on behalf of himself and others engaged automatically in concerted activity protected under Section 7 of the NLRA.
  • Argued that the majority's holding leads to the incorrect conclusion that all non-NLRA class and collective actions arising under statutes over which the NLRB has no jurisdiction trigger automatic NLRA rights.
  • Noted that in both D.R. Horton and Murphy Oil, the Board incorrectly held that a single employee's class action lawsuit inherently involved concerted activity involving multiple employees for mutual aid or protection.
  • Noted that Beyoglu had no knowledge that Arslovski was making efforts to initiate or induce group activity.
  • Beyoglyu's conduct should have been redressed under the FLSA, not the NLRA.

Practical Implications

In Beyoglu, the Board relied on its previous decisions and held, in the context of an FLSA claim, that a single employee bringing a class or collective action on behalf of himself and other employees has engaged in protected concerted activity under the NLRA. Employers should be aware that even with no evidence of concerted activity, the filing itself of a class or collective suit by an individual employee can garner NLRA protections simply because it may contemplate or lead to group participation in the lawsuit.
As Member Miscimarra noted in dissenting opinions in this case, Murphy Oil and Fresh & Easy Neighborhood Market (Legal Update, Seeking Witnesses for Individual Harassment Complaint Now Concerted Activity for the Purpose of Mutual Aid or Protection: NLRB), the Board majority is effectively replacing the Meyers Industries test for concerted activity with presumptions of concertedness each time it labels activities inherently concerted.
The NLRB will likely continue to become the agency that gives employees second bites at the apple on any claims under other employment statutes as the Board majority applies "an overlay of NLRA rights and restrictions" to all employment-related class or collective actions.
The Board is clearly making its offices available for more employee ULP filings covering a broader array of issues and supplement employees' avenues for raising employment disputes in light of: