Filing a Collective Wage and Hour Lawsuit is Protected by the National Labor Relations Act

A National Labor Relations Board administrative law judge found that a New York restaurant illegally fired a waiter for filing a minimum wage and overtime lawsuit under the Fair Labor Standards Act even though the employee was the only named plaintiff and did not assert that any other employees had opted to join in the litigation. Set aside the obvious – that the employee’s termination was likely unlawful retaliation – and focus on how filing this lawsuit was protected concerted activity under the National Labor Relations Act. According to the judge, the discharge was illegal under the NLRA because the employee was pursuing the lawsuit as a collective action and it was reasonable to conclude the employer “believed or at least suspected” the employee was engaged in concerted activity that was protected by the NLRA. This case is a continuation of current practice: plaintiffs’ lawyers filing unfair labor practice charges simultaneously with complaints in court. This tactic is questionable but so long as the Board maintains its extremely low burden to finding an unfair labor practice, it will stick around.