On August 31, the National Labor Relations Board (“NLRB”) issued its decision in
American Federation for Children, Inc., overturning a 2019 case holding that an
employee’s advocacy on behalf of non-employees (such as interns or independent
contractors) is not a protected concerted activity under Section 7 of the National Labor
Relations Act and could not be viewed as being done for the mutual aid or protection of
the employees themselves. Section 7 of the Act provides employees with the right to
engage in concerted activities for the purpose of mutual aid or protection.
American Federation for Children involved an employee who was terminated for conduct
associated with her efforts to solicit support from her co-workers to ensure that a former
co-worker was rehired by the employer. Following existing law, the Administrative Law Judge ruled that because the employee’s actions were taken on behalf of a non-
employee, they were not protected under Section 7 of the Act. The NLRB ultimately overruled the ALJ’s ruling.
According to the NLRB, an assessment of whether employee advocacy on behalf of
others is for “mutual aid or protection” does not merely encompass activity by employees
on behalf of themselves or other employees of the same employer, and is not limited to
activity within the scope of the employment relationship. In determining whether employee
advocacy falls under Section 7, the question is “whether in helping those persons,
employees potentially aid and protect themselves, whether by directly improving their own
terms and conditions of employment or by creating the possibility of future reciprocal
support from others in their efforts to better working conditions.”
As this decision does not provide guidance regarding whether or when the potential for
future ‘reciprocal support’ will be too speculative, it is likely there will be continuing
litigation on this topic. We will continue to monitor this case law as it evolves and keep
you up to date on any new developments.
If you have any questions about the application of Section 7 protected concerted activity
protections to your workforce, please contact our office and we will be happy to assist
you. Thank you.
This Client Alert provides a general overview of new legal developments. It is not intended to
provide legal advice. If you have any questions or would like more information about how
these developments may affect your business, please contact us at (570) 341-8800.
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