NLRB Just Expanded Its Authority to Find an Employer Violated the Act when Banning Non-Employee from Worksite.

The Obama-era NLRB is determined to go out with a bang. The brief facts of this case, decided by a 2-member majority of pro-union Board Members, is as follows: A beverage supervisor worked at a casino for less than one month. After her employment ended, she frequently socialized at the casino’s nightclub. Six months after her one-month employment ended, she filed a class action lawsuit against the casino for alleged violations of the Fair Labor Standards Act. The casino then barred from the premises during the litigation.

Following in the footsteps of most plaintiff lawyers these days, she filed an unfair labor practice charge with the NLRB over the ban. That’s right. A former employee filed a ULP against her employer who banned her from the worksite more than 6 months after her employment ended. Surely this case would not survive because 1) Section 10(b) statute of limitations, or 2) the National Labor Relations Act only protects employees (and applicants). Wrong. The NLRB held that barring her from the premises after she filed a lawsuit violated Section 8(a)(1) of the Act since it was retaliation for engaging in the protected, concerted activity of filing a law suit.

Thankfully we have Chairman Miscimarra who dissented. While his dissent does not change the absurd outcome, it does provide guidance for when the Board is faced with similar facts after President Trump’s appointments are confirmed. Miscimarra did not believe the ban violated Section 8(a)(1). To him, there was no allegation that excluding the employee from her former place of employment affected her wages, hours, or terms and conditions of employment.

Secondly, Miscimarra opined that the Board must weigh the interest of employees in concerted activity against the interest of employers in operating their businesses. The record contained nothing preventing the NLRA-protected conduct by the former employee. Notably, the Fair Labor Standards Act has its own anti-retaliation provision and the NLRB cannot take it upon itself to enforce other statutes.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

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