Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 31, 2023, the National Labor Relations Board issued its 3-1 decision in American Federation for Children, Inc. 372 NLRB No. 137, overturning Amnesty International, 368 NLRB No. 112 (2019), and dramatically expanding the definition of what constitutes “protected concerted activity” under Section 7 of the National Labor Relations Act (“Act”) to include employee advocacy on behalf of those who do not meet the Act’s specific definition of “employee,” including those employed by a different employer.
Section 7 of the Act guarantees employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Under Amnesty International, conduct undertaken to assist non-employees was not protected by Section 7, unless employees acted to further their own interests by soliciting support from or for nonemployees.
American Federation for Children involved an employee who tried to elicit support from her coworkers to make sure her employer rehired and agreed to sponsor the work permit for a former coworker. The administrative law judge concluded that the former employee was not an employee under the Act, and relying on Amnesty International, determined that the activity undertaken by the employee was not conduct for “mutual aid or protection” within the meaning of Section 7.
The general counsel took exception to the administrative law judge’s decision, and the Board reversed, rejecting the logic of Amnesty International and instead adopting a much more expansive understanding of what it means for conduct to be “for mutual aid of protection” based on what it described as the “solidarity principle.”
According to American Federation for Children, an assessment of whether employee advocacy on behalf of others is activity for “mutual aid or protection” does not depend upon “whether the persons that employees seek to help are statutory employees,” or “whether they have any particular relationship with the employer.” Instead, the Board relied upon what it characterized as the “solidarity principle” to conclude:
The question is simply 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.
The Board unanimously agreed that the former employee was considered an applicant for employment and an “employee” under the Act. As the dissent noted, the Board’s analysis should have ended there. Still, the Board addressed and overturned Amnesty International as an “alternative basis” for its holding, a decision that Member Kaplan sharply criticized in his dissent as non-binding, nonprecedential dicta.
How far-reaching the impacts of this decision will be remains to be seen – and it will likely face legal challenge. The ruling itself provides no limiting principle or guidance regarding whether or when the potential for future “reciprocal support” will become too speculative or attenuated to rely upon as establishing “mutual aid or protection.” We expect the general counsel will use this decision to further her attempts to expand Section 7’s protections to include social justice and political activities.
Employers should consult with labor counsel to develop a game plan for addressing employee complaints involving protected concerted activity or advocacy on behalf of non-employees.