Trend Alert: NLRB Holds Employee Acting Alone Engages in Concerted Activity

The NLRB, and courts interpreting the National Labor Relations Act ("NLRA"), consistently have held that to engage in concerted activity protected by Section 7, two or more employees must take action for their mutual aid or protection regarding terms and conditions of employment. Key takeaways: "two or more" and "mutual." But, as the title of this article suggests, even a lone wolf may fall within this definition in certain circumstances.      

On July 29, 2015, the NLRB generously expanded the definition of "concerted" when it held a single employee, acting alone and without the consent of his peers, engaged in protected activity.  In the suit, 200 East 81st Restaurant Corp., discharged waiter, Marjan Arsovski, claimed his former restaurant employer engaged in wage and hour violations under to the Fair Labor Standards Act ("FLSA"). The suit was filed as a collective action, which differs from a class action in that class members are not automatically presumed to be included in the class; rather, members must affirmatively "opt in" to the action. Here, Arsovski was the only named plaintiff and there was no credible evidence to suggest he planned or discussed the filing of the complaint with other employees or that other employees were interested in "opting in."  Despite this, and despite the fact that the NLRB has no jurisdiction over FLSA claims, the Board held that in filing the complaint, Arsovski was seeking to initiate or induce group action and, therefore, engaged in protected concerted activity.  

The Board's opinion suggests that any collective or class action could implicate Section 7 protection. Employers need to be very aware of this potentially significant trend: employers must now consider potential liability under the NLRA even in circumstances where the NLRB has no jurisdiction over the claim at issue and even when a single employee is involved. Hinshaw will be tracking this issue closely to see how the Board continues to develop this area of the law.