How an NLRB Ruling on Post-COVID Firing Could Affect New Jersey Workers

The economy is slowly recovering from the worst of the COVID-19 pandemic in New Jersey and all around the country. Millions of people lost their jobs in the early months of the pandemic in 2020. Congress allocated money to help employers keep paying their employees even if they were not open for business. At the same time, many employees voiced concerns about workplace safety, such as the availability of personal protective equipment (PPE) to help prevent the spread of the coronavirus. The National Labor Relations Board (NLRB) has tended to side with employers over workers seeking better protections against COVID. In June 2021, however, the NLRB ruled in favor of a former barista who alleged that her employer fired her in retaliation for advocating for workplace safety and other issues. Since the ruling was a default judgment, it is not clear to what extent it will affect other similar cases.

The NLRB adjudicates disputes under the National Labor Relations Act (NLRA). Section 7 of this statute protects workers’ rights to organize, form or join a labor union, and engage in other “concerted activities” related to self-organization or “mutual aid.” Section 8(a) identifies “unfair labor practices” by employers. It states that an employer may not “interfere with, restrain, or coerce employees” who are exercising rights protected under § 7. An employer also may not retaliate against an employee, such as by firing them, for asserting their legal rights.

The employer in the recent NLRB ruling operates several coffee shops. The COVID-19 pandemic forced it to close in early 2020, but it was able to reopen by late spring of that year. During that time period, several employees, including the head barista at one location, began corresponding on social media regarding concerns about their workplace. According to the NLRB’s ruling, their concerns involved “communication, wages, recall rights, and worker safety.” They began to circulate a petition through social media in May 2020.

The employer’s president and owner reportedly demanded that the employees remove the petition. Between June and August 2020, the NLRB ruling states that he informed several employees that they would not be hired back to the positions they held before the shop closed. The employees’ actual discharge took place in June. Two of the employees filed charges with the NLRB in August and September.

About a month after the NLRB charges were filed, the employer filed for Chapter 11 bankruptcy. This did not prevent the NLRB from ruling on the case. The employer stated in April 2021 that it would not file an answer in the case, and the NLRB General Counsel moved for default judgment. The Board granted it on June 22.

The NLRB does not provide legal analysis of the employees’ claims, except to state that they are taken as true under the rules for default judgments. Other cases before the NLRB over the past year have resulted in less favorable outcomes for employees. In an advice memorandum from July 2020, it found that while employees had engaged in “concerted activities” related to workplace safety, the employer had not acted with “knowledge or animus.” In another memorandum from the same month, it found that two nursing home employees did not engage in concerted activity when they refused to share isolation gowns with other employees.

The employment attorneys at the Resnick Law Group represent workers in New Jersey and New York in claims under state and federal law. To schedule a confidential consultation to discuss your case, please contact us today online, at 973-781-1204, or at 646-867-7997.

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