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National Labor Relations Board Decision Addressing Advocacy for Unpaid Interns Can Protect New Jersey Workers

The National Labor Relations Act (NLRA) protects the rights of employees to engage in activities related to organizing and collective bargaining. Workers alleging infringement of these rights can file a charge with the National Labor Relations Board (NLRB) and may wish to discuss their situation with a New Jersey employment attorney. In November 2019, the NLRB ruled on a charge alleging that a nonprofit organization’s executive director interfered with efforts to advocate on behalf of unpaid interns. The NLRB’s decision is notable for New Jersey workers in at least two ways. First, it demonstrates how the NLRA can protect workers before any significantly adverse actions, such as termination, occur. Second, the decision addresses the limits of the NLRA’s protection with regard to individuals who are not considered employees, such as unpaid interns.

Section 7 of the NLRA protects a wide range of activities related to “mutual aid or protection” of fellow employees. This includes specific actions like forming or joining a labor organization, as well as “other concerted activities.” Under § 8(a)(1) of the statute, employers may not “interfere with, restrain, or coerce employees” with regard to any of the rights protected by § 7. The NLRA does not provide a clear definition of “employee.” Prior decisions by the NLRB have held that “receiv[ing] or anticipat[ing]…economic compensation” is an essential element to be considered an “employee” under the statute.

The respondent employer is a nonprofit organization headquartered in New York City, with several offices elsewhere around the country. According to the NLRB’s decision, the respondent’s Washington, D.C. office usually has twenty-five employees and fifteen interns. The interns are typically students who volunteer to work for the organization for one semester, and who receive no compensation for their work.

A group of interns reportedly began planning a petition in early 2018 to request that they get paid for their work. They approached the charging party, who is an employee of the organization. He provided feedback, signed the petition, and encouraged other employees to sign.

The incidents that led to the charge of NLRA violations occurred at two meetings one month apart, in April and May 2018. The executive director met with all employees in the DC office in April and “expressed disappointment” that they did not “discuss this matter with her and the executive team” before signing a petition. She reportedly described the petition as “adversarial.” In May, she met individually with the charging party and repeated her assessment of the petition. He alleged that she said he should have given her “advance notice” of the interns’ concerns.

An administrative law judge (ALJ) held that the executive director’s statements violated § 8(a)(1) of the NLRA because they attempted to interfere with employees’ concerted activity. A three-member panel of the NLRB reversed this decision. The charging party’s actions were not protected by the NLRA, it found, because he was primarily advocating for the unpaid interns. Since the interns were not “employees” under the NLRA, advocating on their behalf was not related to “mutual aid or protection.” The charging party has appealed the decision. That case is currently pending before the Court of Appeals for the D.C. Circuit.

The employment attorneys at the Resnick Law Group are available to help if you are involved in a whistleblower matter or other dispute with an employer in New Jersey or New York. To schedule a confidential consultation with a member of our team, please contact us today online, at 973-781-1204, or at 646-867-7997.

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