An NLRB Administrative Law Judge issued a decision on April 29th in which he found that when a waiter in a restaurant in New York City, acting alone, instituted a class action lawsuit claiming violation of state or federal wage and hour laws, he was engaging in concerted activity on behalf of himself and co-workers, even if none of those co-workers are aware of the filing. While the decision does not mention whether the waiter was represented by a union, it seems pretty clear that there was no union in this case.
Thus, the Judge concluded, when the restaurant terminated the waiter, it did so because, whether he knew it or not, he was engaging in concerted, protected activity with the restaurant’s other employees. The Judge also noted that when the owners read the complaint and saw that it had been filed on behalf of a class of similarly situated employees as well, the employer likely believed that the waiter was acting with others for their mutual benefit.
The case involved the issue of whether such an employee, whose employer terminated his employment the day it received a copy of the employee’s lawsuit in the mail from the employee’s counsel terminated the employee for engaging in protected, concerted activity as that term is defined under the National Labor Relations Act (the Act or the NLRA) or whether the employee was fired for something he alone did for himself. If he was not acting in concert with co-workers the Judge opined that the employee’s termination would not have violated the Act (although it may have violated other laws).
ALJ Raymond Green distilled the case down to this fundamental question: when an employee files a lawsuit “relating to wages,” is that employee “engaged in concerted activity within the meaning of Section 7 (of the National Labor Relations Act),” or is such an employee “acting solely in pursuit of his own interests?” The Judge concluded although it was clear that the charging party acted alone, the very language of the complaint, which stated that it had been filed on behalf of the named plaintiff and “on behalf of a class of similarly situated employees who work or have worked at the (restaurant) over a three year period of time,” it "could be argued that (the waiter) sought ‘to initiate or to induce or to prepare for group action.'”
The Judge recommended that the NRLB issue an order directing the waiter’s reinstatement with full back pay and seniority. He also recommended that the employer post a notice to employees that advised employees that, among their rights under the Act, is the right to “file lawsuits on behalf of themselves and others relating to their wages or other terms and conditions of employment.”
The decision is a reminder that with the current NLRB, with its mindset of expanding its reach into non-union workplaces, a broad range of actions that an employee may take on his or her own behalf are likely to implicate the rights of co-workers and thus be found to be protected under the NLRA as concerted activity. Surely this would be the case in virtually every class action lawsuit under state or federal wage and hour laws.