NLRB Holds that Worker Advocacy for Non-Employees is Protected by Labor Law

On August 26, 2023, the National Labor Relations Board (“NLRB”) issued a decision and order in American Federation for Children, Inc and Sarah Rayborn, 28-CA-246878 and 28-CA-262471, holding that an employee who elicited support from her colleagues for an ex-employee had engaged in action protected by the National Labor Relations Act (“NLRA”). In doing so, the Board overturned its 2019 ruling in Amnesty International, 368 NLRB No. 112 (2019) and expanded the scope of protected concerted activity under Section 7 of the NLRA.

American Federation for Children (“AFC”) is a nonprofit that advocates for school choice. The Charging Party, Sarah Rayborn, was an employee of AFC who was allegedly pressured to resign after she advocated among her coworkers and supervisors for AFC to rehire a former colleague who had lost her eligibility to work in the United States due to her immigration status. Even though AFC sponsored the former employee for a work permit so that she could be reemployed and held a position open for her, Rayborn believed that new management did not support the former employee’s rehire and began raising concerns to colleagues and supervisors. After Rayborn indicated to her colleagues that she believed the new supervisor was racist, AFC sought her resignation.

Section 7 of the NLRA gives employees the right to “engage in. . . concerted activities for the purpose of . . . mutual aid or protection.” In other words, to be protected under Section 7, activity must have two elements: (1) the employee’s activity must be “concerted” and (2) it must be for the mutual aid or protection of the employees. The NLRB’s previous decision, Amnesty International, held that activity advocating solely for non-employees does not satisfy the second element of this test and, therefore, is not protected. Applying this precedent, the Administrative Law Judge (“ALJ”) determined that the former employee was not a statutory employee and, consequently, Rayborn had not engaged in protected concerted activity.

However, the NLRB reversed the ALJ’s decision, holding that the former employee was a statutory employee. The NLRB further held that even if the former employee were not a statutory employee, Rayborn’s actions were still protected. The NLRB explained that where one employee comes to the aid of a worker who is not a statutory employee, that activity can still be protected under Section 7, because an employee may still be furthering their own interest when they advocate for a non-employee.  Moving forward, the relevant question in cases like this one is whether, in helping non-statutory employees, employees potentially aid and protect themselves.

The American Federation for Children decision is important for employers to understand because it establishes that employees’ advocacy for non-employees may be protected by labor law.

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This update is provided for informational purposes only and should not be considered legal advice.