NLRB says labor law protects worker advocacy for non-employees

By Daniel Wiessner

On September 1, 2023

Sept 1 (Reuters) – The U.S. National Labor Relations Board has ruled that workers who advocate for non-employees such as interns are protected by federal labor law, reversing Trump-era precedent.

The Democrat-led board in a 3-1 decision issued on Thursday said a 2019 ruling involving Amnesty International Inc improperly narrowed legal protections for workers by ruling that advocating for non-employees is not protected because it does not benefit employees.

The ruling came in a case involving the American Federation for Children (AFC), a nonprofit that advocates for school choice and allegedly pushed an employee, Sarah Raybon, to resign after she suggested that her boss was racist for not wanting to re-hire a former coworker once she adjusted her immigration status.

The board said that because the ex-worker had applied for her old job, she was AFC’s employee under federal labor law and Raybon’s comments were protected.

But even if the applicant was not an employee, Raybon’s conduct was protected because she was advocating for the “mutual aid and protection” of AFC’s workforce, which is protected by the National Labor Relations Act.

AFC did not immediately respond to a request for comment. Raybon could not immediately be reached for comment.

NLRB Chair Lauren McFerran in a statement said the Amnesty International decision failed to recognize that mutual aid and protection is a broad concept.

“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,” McFerran said.

In the board’s 2019 decision, a majority of Republican appointees said an Amnesty International employee who signed a petition calling on the group to pay its interns was not protected because the issue did not affect its employees.

The U.S. Court of Appeals for the D.C. Circuit in 2021 found that Amnesty International’s executive director had not made threatening comments to the employee, as was alleged in the case, and upheld the board ruling.

The court did not consider the broader issue of whether advocacy for non-employees is protected by the NLRA.

In Thursday’s decision, the board said that by attempting to rally co-workers to support the re-hiring of the former AFC employee, Raybon was seeking to engage in group action protected by the NLRA.

Raybon had told colleagues that a new manager who was a former Republican Arizona state senator was refusing to hire the ex-employee because he was racist and anti-immigrant, according to court filings.

NLRB Member Marvin Kaplan, the board’s lone Republican, dissented, saying the Amnesty International ruling only precluded protection for workers when they advocate solely for the benefit of non-employees.

This piece was republished from the Reuters.