U.S. Labor Board Expands Worker Protections for Advocacy of Non-Employees

In a significant decision, the U.S. National Labor Relations Board (NLRB) has voted to extend federal labor law protections to workers who advocate for individuals outside their employing organizations, including interns. This ruling marks a reversal of a precedent established during the Trump administration.
 

The NLRB, led by a Democrat majority, issued a 3-1 decision on Thursday, challenging a 2019 ruling that had controversially narrowed the legal protections available to workers. The 2019 ruling, which pertained to Amnesty International Inc., had concluded that advocating for non-employees was not protected by labor laws because it didn't directly benefit employees. The recent decision underscores the broader interpretation of worker rights.
 
This significant ruling emerged in a case involving the American Federation for Children (AFC), a nonprofit organization that advocates for school choice. The case focused on the alleged firing of an AFC employee, Sarah Raybon, who accused her supervisor of racism after the supervisor hesitated to rehire a former coworker once the coworker adjusted her immigration status.
 
The NLRB determined that, since the ex-worker had applied for her previous position, she was considered an AFC employee under federal labor law, thereby protecting Raybon's comments. Moreover, even if the applicant had not been an employee, the National Labor Relations Act still safeguarded Raybon's advocacy for the "mutual aid and protection" of AFC's workforce.
 
AFC still needs to issue a response to this decision, and Sarah Raybon remains unavailable for comment.
 
NLRB Chair Lauren McFerran emphasized the broad nature of the "mutual aid and protection" concept in her statement, arguing that solidarity and support among employees should be protected, irrespective of the employment status of those involved. She stated, "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."
 
The 2019 NLRB decision that the recent ruling overturned had contended that an Amnesty International employee who had signed a petition advocating for intern pay was not protected, as the issue did not directly impact the organization's employees. In 2021, the U.S. Court of Appeals for the D.C. Circuit upheld this ruling, albeit on narrower grounds, without addressing whether advocacy for non-employees falls under NLRA protection.
 
In its recent decision, the NLRB argued that Sarah Raybon's efforts to rally her colleagues in support of rehiring the former AFC employee constituted a form of group action protected by NLRA. According to court filings, Raybon had alleged that a new manager, a former Republican Arizona state senator, had declined to rehire the ex-employee due to perceived racism and anti-immigrant sentiments.
 
Notably, NLRB Member Marvin Kaplan, the board's sole Republican member, dissented from the majority opinion. Kaplan contended that the Amnesty International ruling should only deny protection to workers who advocate solely for non-employees benefits.
 
The implications of this NLRB decision are far-reaching, as it expands worker protections and reinforces the importance of advocating for mutual aid and protection in the workplace, regardless of employment status.
 
The case is titled "American Federation for Children, National Labor Relations Board, No. 28–CA–246878."
 
*David Warner of Warner PLLC provided legal representation for AFC, while Lisa Dunn served as counsel for the NLRB General Counsel.*