Under Section 7 of the NLRA, employees have the right to engage in concerted activities with other employees in order to improve working conditions, and it is unlawful for employers to interfere with, restrain or coerce employees in the exercise of these rights. This has always applied to two or more employees – but may now extend to the actions of single individuals.
Although the term “concerted activities” has traditionally been interpreted to encompass the concerted efforts of at least two employees, an April 29, 2014 decision by Administrative Law Judge (“ALJ”) Raymond Green in New York expanded this definition and held that one employee’s filing of a FLSA class action triggered Section 7 rights.
The employee at issue was terminated after filing the wage and hour lawsuit, although the evidence also showed he had engaged in an affair with a coworker. In reinstating the employee, the ALJ found that while the lawsuit was not filed with the consent “or except in one case, even with th[e] knowledge” of other employees, the employee “sought ‘to initiate or to induce or prepare for group action,’” which was sufficient to constitute a concerted activity. In addition, the ALJ concluded that when the employer received the FLSA complaint, it “believed or at least suspected” that the employee was engaged in group action, and, even if that belief were mistaken, the discharge would be unlawful. This decision is yet another example of the NLRB’s expansion of Section 7 rights.