Class Action Lawsuit held to be "Concerted Activity" Subject to NLRB Protection

            An Administrative Law Judge ("ALJ") for the National Labor Relations Board ("NLRB" or "Board") has held that the termination of a New York City waiter after he filed a wage-related class action lawsuit violated the National Labor Relations Act. The Decision held that filing the lawsuit either was, or was perceived by the employer to be, protected "concerted activity" amongst employees.  The ALJ found this to be the case notwithstanding the fact that the Plaintiff told only one other employee about his plan to file a class action lawsuit and that employee refused to join in the action.  The NLRB General Counsel's prosecution of this charge, involving a non-unionized workplace,  appears to be a further attempt by the Board - which is currently controlled by Obama appointees -- to extend NLRB jurisdiction beyond the context of union organizing and collective bargaining.

            The ALJ's ruling relied on prior Board decisions which held that "concerted activity" may include actions taken by a single employee if the employee "seeks to initiate or to induce or to prepare for group action," and that - even if the employee's action does not seek to involve other employees -- an employee's termination will nonetheless violate the NLRA if it is motivated by the employer's belief that the employee was engaging in concerted activity.  The ALJ focused on the fact that the complaint that was served on restaurant managers just before they fired the waiter explicitly stated (as do virtually all class action employment complaints) that the action was brought by "Plaintiff on behalf of himself and similarly situated persons," and concluded that - having read this -- the employer "at least suspected" that the waiter was engaged in concerted action. 

            The ALJ recommended that the Board issue an Order to the waiter to be reinstated with back pay.  The Decision may encourage further use of NLRB charges filed in parallel with civil lawsuits to provide an alternative means for a terminated plaintiff to obtain reinstatement and back pay.  On the other hand, the appeal of such a strategy may be limited in states, like California, where federal courts are considered by many to be more favorable venues for employers defending against employee lawsuits.  This is because a charge alleging that an employee's termination violated federal labor law could serve as a basis for the employer to remove a pending wrongful termination action from state court to federal court.