In a decision issued last week (here), the National Labor Relations Board ruled that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7 [of the National Labor Relations Act].” So, for example, if you fire someone for filing a Fair Labor Standards Act lawsuit on behalf of himself and other similarly situated employees, then you’ve violated both the FLSA and the NLRA.
Yes, if an employer actually retaliates in that manner, shame on the company. However, two things pique my interest here:
- An administrative law judge concluded that the employee was fired because he filed a FLSA collective action. By this time, in the federal court action, the parties had barely scratched the surface on taking discovery and the federal court had yet to certify a class. (Ultimately, the FLSA action was settled amicably in federal court, without any finding of liability).