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March 22, 2016

NLRB Doubles Down On DR Horton: Holds Employees Can Solicit Co-Workers To Join A Wage Suit in Working Areas of the Employer’s Property


The National Labor Relations Board (“NLRB”) continues its quest to expand the reach of the National Labor Relations Act (“NLRA”) to cover employee activities related to group employment litigation.  In Dish Network, the NLRB held that an employee who solicits co-workers to join a wage and hour lawsuit engages in “protected, concerted activity” under the NLRA.  See Dish Network, 363 NLRB No. 141 (March 3, 2016).  As such, the NLRB held that employees have an NLRA right to solicit co-workers to join collective employment litigation when not on working time, even in the working areas of the employer’s property.   In so holding, the NLRB held that employees have the same right under the NLRA to solicit co-workers to join a wage suit, as they have to solicit co-workers to support a labor union.

Dish Network expands on the NLRB’s earlier decision in D.R. Horton, Inc., 357 NLRB No. 184 (2012), where the NLRB held that arbitration agreements that waive an employee’s right to pursue a wage and hour class action violate the NLRA and are unenforceable.   Dish Network confirms that the NLRB is committed to expanding the reach of the NLRA to cover group employment litigation, despite the Fifth Circuit’s refusal to enforce the D.R. Horton decision.

Factual Background
Dish Network maintained a Solicitation Policy that stated:

  • Solicitation in the Workplace
  • In the interest of maintaining a proper business environment and preventing interference with work and inconvenience to others, employees . . . may not distribute literature . . . of a personal nature by any means, . . . or solicit for any other reason during work time or in work areas except as specifically authorized in advance by a vice president or higher. Employees who are not on work time ([e.g.] . . . on lunch or break) may not solicit employees who are on work time.

The NLRB charge arose after Dish Network terminated call center employee David Rabb in 2014 for violating the policy when Rabb attempted to solicit colleagues to join Rabb’s lawsuit against Dish Network regarding its pay practices.

Dish Network paid its call center employees a base salary plus commissions, but maintained a policy where call center employees would be punished with commission deductions if the employees committed certain violations, such as not properly marking when they take breaks. Dish Network imposed such deductions against Rabb for putting his phone on hold instead of pressing a button to reflect that Rabb was on break.

Rabb sought assistance from an attorney on the deduction policy. Rabb then attempted to recruit 15 other call center employees to join his and a coworker’s lawsuit against Dish Network.

Two weeks later, Rabb’s supervisor approached human resources to fire Rabb for solicitation of his coworkers, but human resources decided to issue Rabb a written warning instead. 

Some weeks later, Rabb took a bathroom break, but instead of pressing the button indicating Rabb was on break, Rabb put his phone on hold in violation of Dish Network’s policy.  Dish Network then fired Rabb, citing violation of the company’s telephone procedure.

Legal Analysis
On review, the administrative law judge (“ALJ”) held that Dish Network’s solicitation policy violated the NLRA on its face, and further held that Dish Network discharged Rabb in violation of the NLRA for soliciting co-workers to join his wage suit.

In reviewing the terms of the solicitation policy, the ALJ relied on the NLRB’s long-standing case law that an employer cannot ban solicitation in working areas during non-working time.  Instead, according to the NLRB, an employer may ban solicitation in working areas only during working time.  Absent special circumstances, an employer must allow employees to solicit co-workers in working areas when the employee is on non-working time.  As a result, the ALJ found that Dish Network’s solicitation policy violated the NLRA on its face because it prohibited solicitation in working areas at all times.

In reviewing Rabb’s discharge, the ALJ concluded that Rabb engaged in protected, concerted activity under the NLRA when he solicited co-workers to join his wage suit.  The ALJ made this finding based on the NLRB’s D.R. Horton ruling, and subsequent cases, holding that employees have an NLRA right to pursue collective employment litigation.  On the facts, the ALJ held that Dish Network’s stated rationale for discharging Rabb — i.e., Rabb’s violation of Dish Network’s telephone policy — was a pretext for unlawful discrimination.  The ALJ concluded that Dish Network harbored animus against Rabb for his solicitation of co-workers to join his wage lawsuit.  The ALJ ordered reinstatement and back-pay for Rabb.

On review, the NLRB adopted the ALJ’s findings, and agreed that Dish Network had not proven that it would have discharged Rabb even absent his protected concerted activity.

Conclusion
Dish Network is a reminder that the current NLRB is committed to expanding the NLRA to cover employment litigation pursued on a group basis.  The NLRB has not been deterred by the Fifth Circuit’s rejection of D.R. Horton.  As such, employers should be cognizant of the risk that current employees pursuing wage litigation might also file NLRB charges for retaliation, as well as pursue retaliation claims under federal and state wage law.  Dish Network also serves as a reminder that the NLRB enforces strict limitations on employer solicitation policies.  The NLRB holds that employers cannot ban solicitation during an employee’s non-working time, including in working areas, absent special circumstances.

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