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NLRB says casino can’t bar former employee from premises after she filed wage suit

By Ronald Miller, J.D.

An employer acted unlawfully by denying a former employee access to its hotel/casino facility, contrary to its longstanding practice of granting such access, after she and another employee filed an FLSA collective action for unpaid wages, ruled a divided three-member panel of the NLRB. Finding that the employer routinely granted former employees access to its premises, but denied the employee based on her protected activity, the Board concluded that Section 7 of the NLRA plainly does not permit such retaliatory action. Chairman Miscimarra filed a separate dissenting opinion (MEI-GSR Holdings, LLC, May 16, 2017).

The employee worked briefly at the employer’s hotel/casino facility as a “beverage supervisor,” a nonsupervisory position. Following her employment, she continued to socialize at a nightclub in the hotel. The employer had a longstanding past practice of allowing former employees to patronize its facility and attend social functions, and so did not interfere with her visits. On June 21, 2013, the employee and a coworker filed a class and collective action against the employer for unpaid wages under the FLSA and Nevada law. Around the beginning of July 2014, the employer denied the employee access to attend an event at the nightclub. The employer followed up with a letter stating that in light of the ongoing litigation, it was appropriate for the employee to be barred from the employer’s premises, absent order of the court.

Retaliation. The Board agreed with an administrative law judge that in denying the employee access to its facility, the employer expressly retaliated against her for engaging in the protected activity of filing a class and collective action against the employer on matters concerning the workplace. The exclusion of the employee in response to her participation in the wage suit would reasonably tend to chill employees from exercising their Section 7 rights, noted the Board. Moreover, upon learning of this targeted action against the lead plaintiff in the FLSA lawsuit, other employees reasonably would conclude that they, too, might be subject to reprisals and reasonably would be deterred from participating in a work-related lawsuit or other protected concerted activity.

In response to concerns raised by the dissent, the Board was not persuaded that its holding risked compromising the legitimate interests of the employer. To the extent that an employer legitimately may be concerned about interactions (prohibited or not) between its officials and a former employee, the Board found nothing in Section 7 that would prevent the employer from directing its managers and supervisors not to discuss the lawsuit with the former employee. Moreover, with regard to concerns a plaintiff’s presence might create conflict at the workplace or disrupt her former employer’s operations, the Board concluded that nothing in its decision would prevent an employer from continuing any lawful, uniformly enforced rules designed to protect the safety of its workplace or continuity of its operations.

Dissent. Although Chairman Miscimarra agreed with the majority that the former employee was nonetheless an “employee” as defined by the NLRA, he disagreed with their finding that the letter sent to the employee in connection with her non-NLRA lawsuit violated Section 8(a)(1). The dissent argued that Congress, when enacting the NLRA, did not intend to guarantee that every former employee would have a right of access to the private property of his or her former employer whenever he or she joined other employees in a non-NLRA lawsuit against that former employer. Miscimarra observed that while the employer’s action may have constituted retaliation for the employee’s pursuit of the FLSA claim, even such a retaliatory motive did not empower the NLRB to defend the employee’s interest in pursuing their rights under a different statute.