Expanding the Definition of Protected Concerted Activity

Traditionally, the National Labor Relations Board (NLRB or Board), and other courts interpreting the National Labor Relations Act (NLRA), have held that for an employee to engage in protected concerted activity, two or more employees must take action for their mutual aid and protection with respect to their terms and condition of employment.

On July 29, 2015, however, the Board ruled in 200 E. 81st Rest. Corp. (NLRB 2015) that a waiter who filed a wage and hour claim under the Fair Labor Standards Act (FLSA) against a restaurant engaged in a concerted activity that was protected under the NLRA—even though he acted without the consent of any of his fellow employees.

In reaching its decision, the Board reasoned that because the suit was filed as a collective action (meaning other restaurant employees could “opt-in” to join the claim), the plaintiff was seeking to initiate group action, and therefore engaging in protected concerted activity.

This case has tremendous implications for employers that have been of the belief that the NLRA does not apply to them or their workforce. As a result of this decision, employers should review with their counsel whether one employee might be acting on behalf of others when assessing potential liability.