The National Labor Relations Board (NLRB), with a 2-1 majority, ruled this past week that a lone employee filing a lawsuit that seeks class action status is engaging in “protected, concerted activity,” and thus that person’s subsequent termination was illegal.

The two affirming members wrote:

[T]he Board has never been squarely presented with the question presented here: whether a single employee who files a lawsuit ostensibly on behalf of himself and other employees is engaged in protected concerted activity. We hold that he is, based on the reasoning of two recent Board decisions.

The ruling then referenced the board’s¬†earlier D.R. Horton decision (which courts have rejected) and its Murphy Oil USA Inc. ruling, which relied upon the disputed Horton decision.

NLRB Chairman Mark Gaston Pearce and member Lauren McFerran agreed in the case of 200 E. 81st Rest. Corp.¬†Board member Philip A. Miscimarra dissented. The lone employee’s lawsuit was based on various provisions of the Fair Labor Standards Act (FLSA).


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