Defending a
wage and hour class or collective action is one of the most difficult
employment law challenges facing companies today. Penalties are steep,
attorneys’ fees are significant, and liability can be hard to avoid. Employers
should be mindful, however, that they may also face liability under the
National Labor Relations Act (NLRA) if they do not properly respond to
collective employee concerns raised in wage and hour lawsuits. A recent case, Village Red Restaurant Corp. d/b/a Waverly
Restaurant, 366 NLRB No. 42 (2018), exemplifies the additional liability
that employers may have under the NLRA if they ignore protected employee rights.
In Waverly Restaurant, a group of
restaurant employees filed a collective action under the Fair Labor Standards
Act (FLSA) alleging that their employer did not pay them overtime for hours
worked in excess of 40 per week. In response, Waverly began properly paying the
employees overtime. However, Waverly also engaged in additional activity that prompted
the employees to file a charge of unfair labor practice with the National Labor
Relations Board (NLRB). First, Waverly significantly reduced employees’ hours
in order to offset the additional expense of paying overtime to its employees.
Even though the employees’ pay rates increased for their overtime hours,
Waverly’s action resulted in a gross reduction of employees’ take home pay,
prompting some employees to quit. Second, Waverly management made comments to
the employees questioning why they continued to work at Waverly after they had taken
an adverse position by filing a lawsuit against Waverly, which also factored
into some of the employees’ decisions to resign. Third, Waverly management
confronted the employees as to why they filed “another lawsuit,” referring to
the NLRB charge, again prompting some employees to quit. Fourth, Waverly
management told employees they could only return to work if they withdrew their
charge and lawsuit.
The NLRB
found that Waverly had violated the NLRA in multiple ways. In its decision,
NLRB first held that the employees’ act of filing a FLSA collective action
lawsuit constituted “protected concerted activity” under the NLRA. Second, it
held that the employees who quit were “constructively discharged” (which is legally
equivalent to being involuntarily terminated) by Waverly because (1) the hours
reductions made their working conditions so intolerable they were forced to
quit and (2) they were presented with a “Hobson’s Choice” because their
continued employment was premised upon abandoning their right to file charges
under the NLRA. Finally, the NLRB rejected Waverly’s argument that it would
have reduced the employees’ hours even if they had not engaged in protected,
concerted activity. Although Waverly reduced hours for all employees, the NLRB
found that the reductions were the most severe for those employees who initiated
the lawsuit and charge. As a remedy, the NLRB ordered reinstatement and back
pay for the employees.
This
decision highlights additional risks that can arise in the context of a wage
and hour class or collective action. In these situations, employers should be
mindful of not only their obligations under the FLSA, but also under the NLRA,
as well as other statutes designed to protect employee rights. Trying to remedy
one situation may create additional liability in another if employers are not
careful.
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