Board Restores Protections for Employees Who Advocate for Nonemployees

In a decision issued today in American Federation for Children, Inc. (decided on August 26th), the Board reversed its 2019 decision in Amnesty International, returning to longstanding precedent that concerted advocacy by statutory employees on behalf of nonemployees is protected by the National Labor Relations Act (the Act) when it can benefit the statutory employees.

In Amnesty International, the Board found that the statutory concept of “mutual aid or protection” did not encompass the efforts of statutory employees to help themselves by helping others who are not statutory employees.  This was at odds with consistent prior Board, Circuit Court and Supreme Court precedent.  In reversing Amnesty International, the Board explained that such efforts by employees toward non-statutory individuals can benefit employees by improving their own working conditions or by leading nonemployees to later return the help they have received.

“The previous Board in Amnesty International failed to recognize that ‘mutual aid or protection’ easily covers situations where employees extend help to nonemployees, especially those who work alongside them,” said Chairman McFerran. “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 Board also reaffirmed established precedent that job applicants are statutory employees and that the immigration status of workers is typically immaterial to their employee status under the Act,  although in this case, the Board found the activity was protected regardless of whether the applicant was a statutory employee.

Members Wilcox and Prouty joined Chairman McFerran in issuing this decision. Member Kaplan dissented.