Advocating Solely for Nonemployees to Be Paid Is Not NLRA-Protected Activity for Mutual Aid or Protection: NLRB | Practical Law

Advocating Solely for Nonemployees to Be Paid Is Not NLRA-Protected Activity for Mutual Aid or Protection: NLRB | Practical Law

In Amnesty International of the USA, Inc., the National Labor Relations Board (NLRB) held that a petition for the benefit of nonemployee unpaid interns under the National Labor Relations Act (NLRA), with no direct implications on employees' employment terms and conditions is not "for mutual aid or protection" and therefore not conduct protected under Section 7 of the NLRA.

Advocating Solely for Nonemployees to Be Paid Is Not NLRA-Protected Activity for Mutual Aid or Protection: NLRB

by Practical Law Labor & Employment
Law stated as of 31 Aug 2023 • USA (National/Federal)
In Amnesty International of the USA, Inc., the National Labor Relations Board (NLRB) held that a petition for the benefit of nonemployee unpaid interns under the National Labor Relations Act (NLRA), with no direct implications on employees' employment terms and conditions is not "for mutual aid or protection" and therefore not conduct protected under Section 7 of the NLRA.
On November 12, 2019, in Amnesty International of the USA, Inc., a majority of the panel (Board) heading the NLRB's judicial functions held that:
  • Employees' advocacy for nonemployee unpaid interns under the NLRA, with no direct implications on employees' own employment terms and conditions, is not "for mutual aid or protection" and therefore not conduct protected under Section 7 of the NLRA.
  • Declined to apply legal standards under the FLSA for determining whether the NLRA applies to interns.
(368 N.L.R.B. No. 112 (Nov. 12, 2019).)
The Board unanimously held that the manager's statements were not unlawful because the statements did not threaten employees with reprisal if they engaged in Section 7 activity in the future.
The dissent noted that it was unnecessary to reach a conclusion about whether the employees engaged in conduct protected by the NLRA given the Board's conclusion that the manager's speech did not violate the NLRA. According to the dissent, the majority disregarded apposite precedent on protections afforded to employees who advocate for workers not covered as employees under the NLRA (see General Electric Co., 169 N.L.R.B. 1101 (1968), enforced 411 F.2d 750 (9th Cir. 1969) (support for agricultural laborers protected); NLRB v. Peter Cailler Kohler Swiss Chocolates, Inc., 130 F.2d 502 (2d Cir. 1942) (support for independent dairy-farmer vendors was protected)).
The practical implications of this decision are that unpaid interns are not employees under NLRA, and employees advocating for non-employee interns are not engaging in protected activity under the NLRA. However, employers should be aware that interns may be considered employees (and therefore entitled to protections) under other laws, such as the FLSA and certain anti-discrimination laws.

UPDATE:

In a 3-1 decision dated August 26, 2023 and issued August 31, 2023, the Board overruled Amnesty International, asserting that the opinion too narrowly construed what could constitute action "for mutual aid or protection" (Am. Fed'n for Children, Inc., 372 N.L.R.B. No. 137 (Aug. 26, 2023); see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights).