NEW YORK ADMINISTRATIVE LAW JUDGE RULES THAT FILING COLLECTIVE ACTION CONSTITUTES PROTECTED ACTIVITY UNDER NATIONAL LABOR RELATIONS ACT

On April 29, 2014, an administrative law judge with the National Labor Relations Board (NLRB) issued a decision addressing wage and hour lawsuits arising under both the FLSA and state labor laws in 200 East 81st Restaurant Corp. and Arsovski, Case No. 02-CA-115871. In a decision that outlined a melodramatic employment saga, involving an affair and missing files and receipts, the key concern related to the complainant’s filing of a lawsuit seeking wages under the FLSA and New York labor laws. The complainant, who worked as a waiter in the Manhattan restaurant, filed a lawsuit in the Southern District of New York on June 20, 2013: “on behalf of himself and all others similarly situated.” Arsovski v. 200 East 81st Restaurant Corp., Case No. 13-cv-42965. The restaurant terminated the waiter after being served with the lawsuit; however, the employer contended that its termination decision had been made before learning of the lawsuit. The employee then proceeded to file a charge the NLRB in October 2013, months after the initiation of his federal court lawsuit.

The critical point of this decision relates to the definition of “concerted activity” under Section 7 of the National Labor Relations Act (NLRA). The ALJ addressed the question of whether an employee who filed on behalf of himself and all others similarly situated engaged in NLRA-protected, concerted activity even if no individuals actually joined the lawsuit. The ALJ answered this question affirmatively. The employee, although acting on his own behalf and without any identifiable co-plaintiffs, had engaged in Section 7 protected, concerted activity simply because he filed the complaint on behalf of himself and all others similarly situated. This language, ruled the ALJ, could reasonably lead the employer to believe that the complainant was acting in concert with his co-workers in pursuing the FLSA lawsuit. Notably, the employee had unsuccessfully attempted to have a co-worker join him in filing the suit. Despite this fact, the ALJ recommended that the NLRB issue an order: (1) directing the complainant’s reinstatement with full back pay and seniority; and (2) requiring the employer to advise employees of their rights under the FLSA by posting a DOL-required notice.

The Arsovski decision is the latest in a series of rulings under the current Board that address issues arising in a non-unionized workplace. Multiple questions remain: will the NLRB follow the ALJ’s recommendation? If so, how would such a decision affect the employee’s unpaid wages lawsuit, which is still pending in federal court? How would the Board’s decision impact the several wage collective and class action lawsuits filed each day. We will continue to monitor this issue and provide updates. For now, employers should be aware of the Arsovski decision that at least one ALJ believes filing a complaint under the federal and state wage laws may be deemed protected, concerted activity.

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