NLRB Case Hinders Workers' Path To Justice

By Sharon Block | June 2, 2019, 8:02 PM EDT

Sharon Block %>
Sharon Block
The Trump era has not been an easy time for workers who want to stand up for themselves and have a voice in their workplaces and our economy. This administration has made anti-union appointments to federal agencies, repealed rules designed to protect workers' lives and livelihoods, and successfully asked the U.S. Supreme Court to deny basic workplace rights in cases such as Epic Systems v. Lewis and Janus v. AFSCME.

Surprisingly to many, American workers have met the challenge of the Trump administration with a big wave of activism and collective action — teachers marching on state capitols, Uber drivers turning off the app, and tech workers refusing to develop software used to repress people in other countries or immigrants at our border.

Often at the forefront of this wave, you will find fast food workers. The "Fight for $15" has led campaigns to improve the lives of workers in one of the most underpaid[1] and unsafe[2] industries in our country. They’ve staged massive walkouts and supported innovative legislation across the country.

Recently, 23 McDonald’s workers told the company that “Time’s Up” — they stood together and filed sexual harassment claims[3] with the U.S. Equal Employment Opportunity Commission and lawsuits against the company. Another group of workers filed a complaint with the Occupational Safety and Health Administration,[4] asking the federal agency to hold McDonald’s accountable for failing to take reasonable steps to protect them from on-the-job violence. 

In a little-noticed National Labor Relations Board filing, the Trump administration recently has opened a new front in its war on American workers aimed squarely at efforts like those taken by these brave McDonald’s workers. The Trump-appointed general counsel of the NLRB is arguing[5] in a case on remand from the U.S. Court of Appeals for the Ninth Circuit, Tarlton and Son Inc., that workers have no protection under federal labor law if they are fired for filing a lawsuit or a claim with a federal agency to protect their rights. If successful, the general counsel’s position would mean that your employer can refuse to pay you and your coworkers the wages that you are owed and then fire you when you complain to the U.S. Department of Labor or file a lawsuit to get your money. 

The general counsel claims that his position is supported by the Supreme Court’s decision one year ago in Epic Systems v. Lewis.[6] In that case, the court held that employers can force workers to waive the right to file class actions and instead require them to go through individual arbitrations if they think their rights have been violated. In my opinion, the court was profoundly wrong in Epic Systems and I believe that the decision is very harmful to workers’ right. It blocks workers’ access to the courts and forces them to use a private system of justice that is often biased against them. But as bad as the court’s decision in Epic Systems was, it didn’t go as far as the general counsel is now arguing.

In Epic Systems, the court had to reconcile two arguably competing federal laws — one, the National Labor Relations Act, which says that employers can’t interfere with workers when they act collectively and another, the Federal Arbitration Act, which says that courts should enforce arbitration agreements. The court held that even though filing a class action is a form of collective action, Congress didn’t mean to create an exception to its strong support for enforcing arbitration agreements when it passed the NLRA. 

The general counsel has taken the court’s decision that limited where and how workers could seek justice and turned it into a justification for allowing employers to hold workers’ path to justice hostage. For decades, through Democratic and Republican administrations, the NLRB has recognized the obvious principle that it is wrong for employers to fire workers who exercise their legal rights and contrary to the NLRA’s protection for worker collective action — even if other laws also protect workers from retaliation. 

I think it is fair to say that the general counsel’s position is an attack on the rule of law. A basic tenet of how democracy works is that Congress passes laws that confer rights on us and if those rights are violated, we can appeal to the government or the courts to vindicate our rights. But, if the price that you have to pay to vindicate your rights is your job, your rights aren’t really worth very much. Fight for $15 workers have braved the headwinds created by the Trump administration to strive for a better life for their families and communities — the workers who recently filed claims shouldn’t now have to risk losing their jobs just for the opportunity to ask to be free from sexual harassment and violence.



Sharon Block is executive director of the Labor and Worklife Program at Harvard Law School. She previously served as principal deputy assistant secretary for policy at the U.S. Department of Labor and senior counselor to the secretary of labor. She was a member of the NLRB from 2012 to 2013.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] https://nelp.org/publication/america-needs-15-minimum-wage-2/

[2] https://nelp.org/news-releases/new-report-mcdonalds-fails-protect-workers-gun-violence-robberies-attacks/

[3] https://www.nytimes.com/2019/05/21/business/mcdonalds-female-employees-sexual-harassment.html

[4] https://www.bloomberg.com/news/articles/2019-05-22/mcdonald-s-workers-want-osha-to-investigate-pattern-of-violence

[5] https://www.bloomberglaw.com/document/X3FVPEVS000000?bna_news_filter=daily-labor-report&jcsearch=BNA%2525200000016a994bd6baa56edb7fc2060002#jcite

[6] https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf