California Employee Retaliation Case Threatens to Slash Worker Protection Nationally

Los Angeles employment lawyers have been carefully watching developments in a California workplace retaliation lawsuit that raises new questions about the scope of protections afforded under federal labor laws. This could potentially endanger these protections – not only here in the Golden State, but across the country – if the National Labor Relations Board sides with the construction company employer in the dispute.workplace retaliation

Many employment law attorneys and scholars agree that a core safety net in all labor statutes – state and federal – is the understanding that litigation is a protected activity. This principle forms the foundation of labor laws that prohibit employers from retaliating against employees for filing a lawsuit for things like unlawful discrimination or wage and hour violations.

Relying on New U.S. Supreme Court Precedent

The general counsel’s office for the NLRB set off alarm bells for many California labor law attorneys by arguing recently that provisions in the National Labor Relations Act that shields workers for group action litigation don’t extend to claims that fall outside of the NLRA. Basing this position on the split U.S. Supreme Court’s 2019 ruling in Epic Systems v. Lewis, which held a worker’s right to class action litigation wasn’t exempt in employment arbitration agreements.

This would impact workers who attempt to pursue class action litigation for things like systematic age discrimination or gender discrimination. Los Angeles employment attorneys see this as potentially hampering the power of federal statute and the ability of employees to obtain justice under the act.

There would still be some protections from employer retaliation. For instance, the state’s wage statute as well as the federal Fair Labor Standards Act both contain provisions that bar retaliation against workers who file claims under those laws. Still, the NLRA’s anti-retaliation protections are important, with the current position of the NLRB being that both jointly-filed and individual claims (assuming they benefit other workers) are protected from employer retaliation.

If the NLRB sides with its general counsel, it could also potentially affect workers who take to social media to protest certain employment actions.

The California Employment Case That Could Cost Worker Rights Nationally

The case at issue involves an employee of a construction company, who first argued in 2013 that his employer’s mandatory arbitration program for employees wasn’t valid per the NLRA. This was after the company tried to compel arbitration in response to plaintiff and his co-workers suing the company over alleged wage and hour law violations.

The case went before the NLRB, which in 2015 invalidated the arbitration agreement that forced workers to waive their right to class action. The case was appealed to the U.S. Court of Appeals for the Ninth Circuit, but justices sent the matter back to the board following the SCOTUS ruling in Epic. This was a stark about-face from the high court’s previous stance set in 1978 when they ruled the NRLA does protect group activity in filing employment claims with courts and other government agencies.

Los Angeles employment lawyers know that if the board sides with its general counsel on this, employees would effectively lose what’s long been held as an important means to fight back against workplace retaliation.

Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.

Additional Resources:

Labor Law Safeguards for Worker Lawsuits Imperiled at NLRB, May 14, 2019, Bloomberg Law

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