NLRB Finds that Advocacy of Non-Employees is Protected Under the National Labor Relations Act

11 September 2023 Labor & Employment Law Perspectives Blog
Author(s): Sara J. Higgins

As we have observed several times this year, the National Labor Relations Board (NLRB or the “Board”),  under the majority appointed by President Biden, has taken a number of actions to widely expand workers’ rights under federal labor law.

A recent Board decision in American Federation for Children, Inc. and Sarah Raybon serves as another important reminder that employee protections under the National Labor Relations Act (NLRA or the “Act”) are being interpreted broadly by the current Board. And it highlights the fact that employers should be mindful that federal labor laws are not only reserved for union employees, but also provide protections for employees in non-unionized workforces.

To be sure, Section 7 of the Act protects employees who take action in the workplace for when they engage in “protected concerted activity,” which normally implies the employee is acting on behalf of themselves and other employees.

However, in American Federation for Children, the NLRB went a step further and held that, in some circumstances, such protection also applies to actions by a company’s workers that are taken in support of non-employees. This new ruling overturns prior precedent from 2019 and establishes that employers cannot punish employees for taking group or “concerted” action to improve working conditions of non-employees, such as applicants or interns.

Consistent with the Board’s recent movement, the American Federation for Children decision overturns a Trump-era NLRB decision, Amnesty International USA and Raed Jarrar, in which the Board held that advocacy for non-employees — in that case, interns — was not protected by the Act. In a 3-1 majority decision, the current Board found that the Amnesty International case was “at odds with precedent and the policies of the [A]ct.” 

In the recent American Federation for Children case, the Board found that an employee, Sarah Raybon, engaged in protected activity when she advocated for her employer to rehire a former colleague, Gaby Ascencio, whose employment ended because her work authorization had lapsed (she was not a U.S. citizen or permanent resident), but who subsequently reapplied for a job with the company after regaining her work authorization. Raybon’s zealous advocacy for Ascencio’s rehiring included what her manager perceived to be “incendiary” accusations, and Raybon was ultimately terminated “for creating a toxic atmosphere within the organization.”

In reviewing the matter, the Board first determined that Ascencio was an employee within the scope of the NLRA because the law covers applicants. Going one step further, the NLRB also found that, even if Ascencio were not an employee under the Act, Raybon’s advocacy for Ascencio’s rehiring was protected under the Act because Raybon stood to benefit from supporting Ascencio, given that Ascencio was a valuable colleague.

In light of the American Federation for Children decision, employers should exercise extreme caution when disciplining employees who have participated group advocacy, regardless of the employment status of the individual(s) who stand to benefit from such advocacy.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services