This edition of Employment Flash looks at developments in labor and employment law, including with respect to restrictive covenants; new state anti-harassment laws; minimum wage increases; age bias claims; and the employee classification test and definition of concerted activity. The newsletter also examines how the U.K., France and Germany are working to close the gender pay gap.
On January 11, 2019, the NLRB ruled that complaints made by individual employees to management in front of other employees do not qualify as protected concerted activity under the NLRA. In Alstate Maintenance, LLC & Trevor Greenidge, 367 NLRB No. 68 (2019), the Board ruled in a 3-1 decision that the employer did not illegally fire an employee for complaining in front of several of his co-workers to a supervisor about an assignment for which the employee thought he would not receive a tip. The Board in Alstate overturned its previous ruling in Wyndham Resort Development Corp. & Gerald Foley, 356 NLRB No. 104 (2011), that an individual employee’s complaint made in a group setting was sufficient to qualify as concerted activity under the Act, and the Board in Wyndham dismissed any requirement that employees previously agree to act in concert with each other. The majority in Alstate reasoned that Wyndham incorrectly conflated mere group settings with protected group complaints and held that, by overruling Wyndham, the Board was returning to its previous line of precedent that action by a single employee qualifies as concerted activity under the NLRA only if that individual was authorized to act on behalf of the group or was attempting to induce group action.