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Volume XI, Number 133

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Will Filing A Class Action Continue To Be Protected Concerted Activity?

The National Labor Relations Board will reconsider whether an employer can discipline an employee for the act of filing a class action, which has long been held to be protected concerted activity under the National Labor Relations Act. Cordua Restaurants, Inc., 16-CA-161380 (Aug. 15, 2018) (Cordua II).

The Board, sua sponte, vacated its Decision and Order in Cordua Restaurants, Inc., 366 NLRB No. 72 (Apr. 26, 2018) (Cordua I). In that case, the NLRB found the employer had violated the Act when it fired a worker for filing a collective wage and hour lawsuit against the company. The decision was issued prior to the U.S. Supreme Court’s Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612 (2018), in which the Court ruled, 5-4, that class action waivers in employment arbitration agreements do not violate federal law.

In Cordua I, the NLRB (Members Mark Gaston Pearce, Lauren McFerran, and Marvin Kaplan formed the majority) held there was no dispute that the filing of the collective wage and hour lawsuit constituted protected concerted activity. The employer defended the termination, maintaining the employee was fired not because of his protected concerted activity, but because he attempted to steal employee wage information from confidential company files and lying about it during investigative interviews. The Board rejected the employer’s defense, noting that requests by employees for information relevant to Section 7 activities are protected, citing Faurecia Exhaust Systems, 355 NLRB 621, 622 (2010). That is the case even if the information is protected. However, the protection is lost if the information is sought or obtained surreptitiously. Ridgely Mfg. Co., 207 NLRB 193, 197 (1973), enfd. 510 F.2d 185 (D.C. Cir. 1975).

In Cordua II, an unpublished decision, Board Chairman John Ring and Members Kaplan and William Emanuel voted to vacate Cordua I, sua sponte. The Board held that it wants to “reconsider the entire proceeding.” The Board’s action signals the majority may hold that an employer may discipline an employee for the act of filing a class action.

Pearce and McFerran dissented, noting that nothing in Epic Systems Corp. warranted reopening the case since that Supreme Court decision addressed “the question of whether an employer’s maintenance of an arbitration agreement barring employees from bringing a collective action violated the Act,” whereas, in the instant case, the Board found the employer violated the Act by terminating an employee in response to his filing of a collective wage-and-hour lawsuit against the employer. Pearce and McFerran noted that it is “well settled that the filing of such a lawsuit constitutes protected concerted activity.”

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Jackson Lewis P.C. © 2021National Law Review, Volume VIII, Number 250
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About this Author

Linda R. Carlozzi, Jackson Lewis, arbitration proceedings lawyer, corporate transactions attorney
Principal

Linda R. Carlozzi is a Principal in the New York City, New York, office of Jackson Lewis P.C. She joined the firm in 1997 and focuses her practice on traditional labor law.

Ms. Carlozzi counsels clients in the development and implementation of preventive labor and employee relations programs. She advises both unionized and union-free clients on a full range of labor and employee relations matters, with a focus on traditional labor law. She has represented numerous employers during arbitration proceedings and negotiations....

212-545-4040
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

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...

617-367-0025
Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

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-...

212-545-4000
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