Group Activity to Aid Nonemployees Can Be Protected

​A recent ruling from the National Labor Relations Board (NLRB) restored legal protections for employees who advocate for independent contractors, interns and others who aren't statutory employees.

In American Federation for Children, the board ruled on Aug. 26 that an employee engaged in protected concerted activity when she tried to bolster efforts to rehire a former co-worker who was dealing with a change in immigration status.

The National Labor Relations Act (NLRA) gives workers the right to come together for mutual aid or protection. An employer cannot fire or retaliate against a worker for participating in protected concerted activity. The new decision struck down a 2019 ruling, Amnesty International, which found these legal protections do not apply when employees advocate for nonemployees.

Under the new ruling, activity intended to benefit nonemployees can be protected concerted activity if it also benefits employees. Mutual aid or protection "easily covers situations where employees extend help to nonemployees, especially those who work alongside them," said NLRB Chairman Lauren McFerran. "Standing in solidarity can be a protected act, regardless of the employment status of those you stand with. The question is simply whether, in helping others, employees might help themselves and get help in return."

Independent contractors, freelancers and interns typically are not statutory employees. Supervisors and managers are not considered employees under the NLRA, according to Steve Bernstein, an attorney with Fisher Phillips in Tampa, Fla.

In the new ruling, the NLRB confirmed that job applicants are statutory employees and that the immigration status of workers is immaterial to their employee status under the NLRA. Agricultural workers and public employees are not covered by the NLRA.

The new ruling "creates a newfound legal risk [for employers], given the board's very broad and far-reaching decision," said Gary Ankers, an attorney with Littler in Detroit.

Background

The case involved the American Federation for Children, a Dallas-based nonprofit organization that advocates for school choice.

In January 2019, the organization was in the process of rehiring Gaby Ascencio, a former employee who was awaiting renewal of her work authorization status. Another employee, Sarah Raybon, supported rehiring Ascencio in meetings with Steve Smith, the organization's new Arizona state director, who previously served as an Arizona state senator. They also discussed the organization's English and Spanish website content regarding immigration status.

Raybon became concerned that Smith wouldn't rehire Ascencio and that Smith's leadership might hinder the organization's outreach to the Hispanic community. She deemed a bill he previously sponsored to be anti-immigrant. Raybon raised these concerns with a number of colleagues.

On Feb. 25, a manager told Raybon that she violated the organization's employee handbook by calling Smith a racist and said that Smith did not want to work with her anymore. She resigned that day. In March, she took a new position with a different organization that was a member of the same Arizona-based school choice coalition. Soon afterward, her new organization was removed from the invitation list for meetings of the coalition.

In mid-August, Raybon filed an NLRB charge, alleging that the American Federation for Children had violated the NLRA by maintaining unlawful work rules, seeking her resignation because of her protected concerted activity and making retaliatory efforts to interfere with her new employment.

The board concluded that Raybon's conduct was protected concerted activity. The American Federation for Children did not respond to a request for comment.

In several recent decisions, including this one, the NLRB "seems to be taking a much broader view of protected concerted activity," Bernstein said.

"This is obviously problematic for employers, as they now have to be aware of activities not only involving their direct employees, but even those that they do not employ," Ankers said. "Ultimately, the impact of this decision is extremely broad and may affect employers in ways that no one yet can recognize or even define. In today's society and workplace, where there is an environment for social justice, political movements and the like, one can imagine a scenario where these concerted activities with nonemployees by an employer's employees fit the definition of mutual aid and protection."

Best Practices

Employers should make sure their training for employees and managers is updated to reflect recent decisions from the NLRB and other regulators. "You're only as good as your supervisors, and they're only as good as the quality of the training they are given," Bernstein said. The rules "seem to be changing weekly. I don't expect that to stop."

Employers should quickly involve HR in any decisions around discipline for a worker who may have engaged in protected concerted activity.  "It's important for HR to be closely involved in any decision-making, especially in the end stages of discipline," Bernstein said.

To know if something is concerted activity, consider whether an employee made a complaint publicly and whether the issue would impact others, Bernstein said.