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NLRB Decision Extends Collective Action Protections

Federal board rules that employee advocacy for non-employees is protected.

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American workers have long had the legal right to collectively advocate for themselves on labor law matters, such as better pay and working conditions. However, there have often been disputes on just how far that right to concerted action extends.

In a win for employees, the National Labor Relations Board (NLRB) recently ruled that federal labor law protections extend to employee advocacy for non-employees such as interns and job seekers. That means employees are legally protected from retaliation in those situations. If your rights have been violated by your employer, contact an experienced employment law attorney today to find out how we can help.

What’s protected by the National Labor Relations Act (NLRA)?

The NLRA, passed in 1935, is a foundational statute in United States labor law. The NLRA protects employees who engage in “concerted action” to address labor issues such as pay, benefits, and working conditions.

While the NLRA protects labor unions, you don’t have to be part of a union to enjoy the NLRA’s protections. Any sort of concerted action to address labor issues is protected, including but not limited to:

  • Speaking up with a group of coworkers about labor issues, such as unfair pay practices or unlawful harassment. This includes raising concerns with your employer, an appropriate government agency such as the EEOC or NLRB, or the media.
  • Communicating with your coworkers about pay, benefits, and working conditions, inside or outside the workplace. (This means, for example, that if your employer has a policy saying you can’t talk about your pay, that policy is unenforceable.)
  • Circulating petitions, information about unionization, or any other materials meant to rally collective support on a labor-related issue.
  • Making preparations for labor-related concerted activity—even as an individual employee.

Remember, though, that the NLRA’s protections are specifically for advocating for labor issues like pay and working conditions. If you speak out about problems with your employer’s products or services, for instance, that sort of advocacy is typically not protected by the NLRA (although it may be protected by other laws).

The new NLRB decision protects employee advocacy for non-employees in the workplace

The NLRB’s recent decision concerned the American Federation for Children (AFC), a nonprofit organization that advocates for school choice. AFC allegedly pushed an employee named Sarah Raybon to resign after she suggested that her boss’s reluctance to re-hire a Hispanic former coworker was motivated by race. Raybon also attempted to rally coworkers in support of bringing back their former colleague.

In a 3-1 ruling, the NLRB determined that because the former coworker had applied to get her previous job back, she counted as an “employee” for labor law purposes. This means Raybon’s advocacy was protected concerted activity on behalf of a fellow employee.

However, the NLRB took that decision a step further, determining that even if the former colleague were not an employee, Raybon’s activities would still be protected by the NLRA on the grounds that she was advocating for the "mutual aid and protection" of AFC's workforce.

This decision has significant implications for all sorts of employee advocacy for non-employees, including not only job seekers but also interns, contractors, and so on. It also speaks to a broader legal reality: if you raise concerns about pay and working conditions at your job, you have legal protection against retaliation, and if your employer violates those rights, you have recourse.

Talk to an experienced employment law attorney today

However, to protect your legal rights, you need an experienced advocate in your corner. Federal labor and employment laws are complex, and whether a particular provision applies in your specific case is a highly fact-specific matter. An experienced employment lawyer can investigate your situation, explain your options, and advocate for your rights every step of the way.

If you believe you have been retaliated against for speaking up about a labor issue, or if your employer has violated any of your legal rights, contact us online to schedule a free case evaluation with Nilges Draher LLC. Our conversation is confidential and there is no obligation to hire us, just answers about your options.

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