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June 21, 2018

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Reminder To Employers: Even The “New” NLRB Will Not Bail You Out If You Terminate An Employee (Union or Non-Union) Who Discusses Or Complains About Terms And Conditions Of Employment

On Friday, May 4, 2018, the National Labor Relations Board ruled that a janitorial services company violated the National Labor Relations Act when it terminated an employee who pursued wage theft claims and discussed the company’s poor working conditions with Houston city lawmakers.  Specifically, the employee filed a formal wage theft complaint with the city of Houston and spoke about the working conditions of the company’s employees at a Houston city council meeting.  The NLRB concluded that the employee’s conduct in filing a wage theft complaint and discussing the company’s working conditions with the Houston city council both constituted concerted activity protected by the NLRA.  In finding that company terminated the employee’s employment in response to the above concerted activity, the NLRB ordered that the employee be made whole for lost earnings and benefits, but denied the employee’s request for consequential damages because current NLRB law does not provide for such damages.

This decision is significant for two reasons: (1) this is the first decision rendered by a Republican majority NLRB that includes newly appointed Republican member John Ring, thereby signaling that the NLRB will continue to aggressively prosecute cases involving non-union employees that engage in protected concerted activity; and, (2) the decision reaffirms that consequential damages (such as emotional distress damages) are not available under the NLRA.

Union and non-union employees alike have the right to collectively discuss their terms and conditions of employment.  Employers should be careful not to take adverse employment actions against employees for discussing their wages or workplace related issues.  Remember – employees do not need to be unionized in order to be afforded the protections of the NLRA.

Jackson Lewis P.C. © 2018

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About this Author

Alessandro Villanella, Jackson Lewis Law Firm, Employment Litigation Attorney
Associate

Alex Villanella is an Associate in the Long Island, New York, office of Jackson Lewis P.C. Since joining Jackson Lewis as a summer associate in 2008, Mr. Villanella has practiced in traditional labor law areas such as collective bargaining, labor arbitration, contract administration and representation and unfair labor practice proceedings before the National Labor Relations Board and improper practices proceedings before the Public Employment Relations Board.

He also regularly counsels clients in the development and...

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