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NLRB Ruling Protects Employee Advocacy for Non-Employees

"Labor Law" written on a blue binder.

A recent decision by the National Labor Relations Board (NLRB) found that federal labor law protections include employee advocacy for non-employees, reversing a 2019 decision.

As Reuters reported, the ruling in question concerned Sarah Raybon, an employee of the American Federation for Children (AFC), a nonprofit organization. AFC reportedly pushed Raybon to resign after she suggested that racial discrimination was the motive for not wanting to re-hire a Hispanic former co-worker. Raybon had also attempted to rally co-workers to support the re-hiring of the former colleague.

Breaking down the NLRB decision

In a 3-1 decision, the NLRB stated that the former co-worker was considered an "employee" for labor law purposes because she had applied for her old job; thus, Raybon was engaging in protected activity by advocating for another employee. However, the Board went a step further, determining that even if the applicant were not an employee, Raybon's conduct would still be protected because she was advocating for "mutual aid and protection" in AFC's overall workforce. This is a protected activity under the National Labor Relations Act (NLRA).

Although this particular decision focused on advocacy in the hiring process, the ruling would also protect employees who advocate for interns, contractors, and other non-employees. This is a significant win for employees' rights across the country.

What is protected by the NLRA?

The National Labor Relations Act, enacted in 1935, protects employees' rights to collective bargaining and collective action in the workplace. Although the NLRA is most commonly mentioned in the context of union activity, its protections extend to employees in non-union workplaces as well.

The NLRA protects "concerted activities" by employees regardless of whether they are in a union or not. Some examples of protected activities under the NLRA include:

  • Talking about wages, benefits, and working conditions with other employees, inside or outside the workplace. This includes sharing information about those topics on social media.
  • Joining with co-workers to talk to your employer, a government agency, or the media about labor problems in the workplace, such as unlawful discrimination or harassment.
  • Joining with co-workers to refuse to work in unsafe conditions.
  • Circulating petitions asking for better pay and working conditions.

Note that "concerted activity" need not be done directly in concert with other employees to be protected by the NLRA. An individual employee can also engage in protected "concerted activity" by, for example, speaking up on behalf of a group or preparing to bring an issue to a group of co-workers.

It's important to keep in mind, however, that the NLRA protects concerted action to address labor concerns, not every possible concern about your employer. For example, if you complain publicly about your employer's products or services without relating your complaints to pay, working conditions, or another labor issue, you generally do not have the protection of the NLRA.

An experienced employment law attorney can protect your rights

If you've been fired or retaliated against for advocating for better pay or conditions in your workplace, then you need your own advocate to stand up for your legal rights. You have legal protections, but they aren't self-executing; you need to exercise your rights, and an attorney can help.

That's why we strongly encourage you to contact us as soon as possible. Talking to an attorney isn't an obligation to file a formal complaint or lawsuit; it's an opportunity to get answers about your rights and options. If you believe your legal rights as an employee have been violated, contact Gibson Law, LLC today.

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