Employee Who Filed Lawsuit on Behalf of Other Employees Without Their Authorization Participated in “Concerted Activity”

A New York waiter filed a lawsuit against his employer alleging that the restaurant had underpaid its tipped employees in violation of the Fair Labor Standards Act (FLSA) and New York labor law. The waiter filed the action without the consent of any other employees, but he requested that the lawsuit be treated as a collective action under the FLSA on behalf of similarly-situated current and former employees. The restaurant’s general manager immediately took the employee off the restaurant’s work schedule after being served with the suit, effectively terminating him. The waiter filed an unfair labor practice charge.

The administrative law judge found that the lawsuit triggered the Company’s action in terminating the waiter. The question then became: Does a single employee filing a lawsuit constitute protected, concerted activity? The Board thought so, explaining that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore protected by Section 7.” Board Member Miscimarra dissented stating that while a group of two or more employees acting in concert on non-NLRA claims might be protected by the NLRA, this waiter’s individual act of filing a lawsuit was not concerted activity.

This case is reminiscent of a previous case we wrote about in which a teacher making a comment to himself was found to have engaged in concerted activity. [See, “Conversations You Have With Yourself When Alone May Be ‘Concerted Activity”. The Board has steadily expanded the scope of concerted activity such that employers should be concerned that even non-NLRA claims may be protected by the NLRA.

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 maustin@ralaw.com.