September 25, 2018

September 24, 2018

Subscribe to Latest Legal News and Analysis

Discharge of Employee Who Protested Illegal Policy By Himself Ran Afoul of NLRA, Federal Appeals Court Rules

An employee who was discharged after protesting an admittedly illegal policy was entitled to reinstatement and back pay despite having acted on his own, the federal appeals court in New York has ruled, enforcing a National Labor Relations Board order. National Labor Relations Board v. Long Island Ass’n for AIDS Care, Inc., No. 16-2325 (2d Cir. Aug. 31, 2017). The Court stressed that “even one individual employee” may not be required “to abide by unlawful restrictions as a condition of employment.”


LIAAC provides HIV/AIDS prevention counseling and treatment. Marcus Acosta had been a community outreach specialist at LIAAC about one year when he was discharged.

Confidentiality was a high priority for LIAAC. It required all employees to sign a “Confidentiality Statement” at the time of hire. The Confidentiality Statement directed employees to keep information concerning clients and their medical conditions confidential and prohibited employees from disclosing information such as wages, salaries, and working conditions and from speaking to the media about LIAAC.

Acosta had signed the Confidentiality Statement without incident at the time of hire. During his employment, Acosta had performance problems and had several conflicts with his supervisors. Shortly after his one-year anniversary, LIAAC asked him to sign the Confidentiality Statement again. He signed it, but indicated on the document that he was doing so “under duress” in protest of the requirements to keep wages and working conditions confidential. He was discharged. Acosta then filed an unfair labor practice charge challenging the discharge under the National Labor Relations Act.

Unlawful Policies

The NLRB concluded LIAAC’s prohibitions on discussion of wages and working conditions and on speaking with the media were unlawful. These types of rules have long been held to violate employee rights under the NLRA. It ruled that LIAAC’s discharge of Acosta for protesting those prohibitions was unlawful and ordered that he be reinstated with back pay.

On appeal to the Second Circuit Court of Appeals, LIAAC claimed Acosta was discharged for insubordination, i.e., refusing to the sign the Confidentiality Statement without the “under duress” qualifier. It argued that, since he engaged in insubordination on his own, not with any other employee, he was not engaged in “concerted activity” protected by the NLRA, and therefore, LIAAC may discharge him.

The Court disagreed. It stated:

An employer may not require even one individual employee to abide by unlawful restrictions as a condition of employment. That the employees have not yet organized to protest the unlawful nature of the restriction at issue does not make it any less unlawful. The contrary rule urged by LIAAC, that an employee can be required to comply with by an unlawful policy and the employee is only protected from the unlawful policy if he or she actively organizes with other employees against it is illogical and untenable.


The decision demonstrates the risks employers run when their personnel practices and policies are not carefully vetted to ensure legal compliance. It is critically important to ensure that employment policies are not only carefully and thoughtfully drafted to meet the needs of the business, but also that they are fully legally compliant.  Policies which are lawful and properly and uniformly applied go a long way toward substantially reducing the risk of liability from employment-based claims.  Had the policy here been lawful, the employer’s argument that the employee was lawfully discharged because he acted alone may have been accepted by the Court.

Jackson Lewis P.C. © 2018


About this Author

Timothy J. Ryan, Labor and Employment Attorney, Jackson Lewis Law Firm

Timothy J. Ryan is a Principal in the Grand Rapids, Michigan, office of Jackson Lewis P.C. He has practiced exclusively in the labor and employment area since 1987, when he was admitted to the Bar.

Mr. Ryan is a frequent speaker and writer on topics including union avoidance, hiring and firing, family and medical leave, wage and hour laws, and other issues related to labor and employment law for employers. Mr. Ryan represents employers facing legal challenges in the following areas:

  • Union-Management...
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...