Single Employee Filing Class Action Lawsuit Engages in Protected, Concerted Activity

Remember when the NLRB expanded the definition of protected, concerted activity to times when an employee talks to himself? How about when an employee files a sexual harassment claim for the way a supervisor treated her? Now, the Board has expanded it to times when an employee does not even communicate or solicit assistance of other employees before filing a class action lawsuit.

Now, an employee who files an employment-related class action lawsuit, i.e. a failure to pay employees overtime, engages in protected concerted activity within the meaning of Section 7 of the National Labor Relations Act even though the employee has not previously consulted with other employees about the lawsuit. Historically, for protection, employees needed to engage in “group action” for the “mutual aid and protection” of others, instead of solely for his or her personal benefit.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at

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