By: Molly Gabel and Rachael Reed

On August 31, 2023, the National Labor Relations Board’s Democratic majority issued a decision in American Federation for Children, Inc. The ruling expands the scope of activities protected by Section 7 of the National Labor Relations Act (NLRA) to include statutory employees’ efforts to advocate for nonemployees. To reach this outcome, the Board overruled Amnesty International, which held that employee advocacy on behalf of individuals who do not qualify as “employees” under the NLRA is excluded from Section 7 protections. 

The Board’s 2019 Amnesty International decision was one of several Trump-era rulings involving “protected concerted activity” targeted for review by the Board’s current General Counsel Jennifer Abruzzo in Memorandum 21-04 (“Mandatory Submissions to Advice”). The diverging results in American Federation for Children and Amnesty International each turned on answering when, if ever, a statutory employee seeking to support a nonemployee is acting for the purpose of “mutual aid and protection” within the meaning of the NLRA. 

“Mutual Aid and Protection” Under Amnesty International

Section 7 of the NLRA gives employees the right “to engage in . . . concerted activities for the purpose of . . . mutual aid and protection.” 29 U.S.C. § 157 (emphasis added). Employee conduct protected by this statutory provision requires the employee’s activity be both “concerted” and for “mutual aid and protection.”

In Amnesty International, the Board considered whether employees who joined a petition seeking pay for their employer’s unpaid interns engaged in protected Section 7 activity. The then Republican majority determined they had not. According to the Amnesty International Board: “Activity advocating only for nonemployees is not for ‘other mutual aid or protection’ within the meaning of Section 7.” Because Amnesty’s unpaid interns did not qualify as statutory employees under Section 2(3) of the NLRA, their coworkers’ efforts to help them gain paid wages were not undertaken for “mutual aid and protection,” and thus were not protected under Section 7.

American Federation for Children Takes a Much Broader View of “Mutual Aid and Protection” Based on Principles of Solidarity

The Board’s 3-1 American Federation for Children decision purports to overrule Amnesty International and broadens the interpretation of “mutual aid and protection” to encompass advocacy on behalf of nonemployees in circumstances that might also benefit statutory employees. American Federation for Children involved an employee whom the Board majority claimed solicited support from her coworkers to ensure the rehiring and work permit sponsorship of a former colleague. Applying Amnesty International, an administrative law judge determined the employee had not acted for the purpose of mutual aid and protection because her former colleague was not a statutory employee under the NLRA. On exceptions filed by the General Counsel, the Board reversed.

First, the Board, including the dissent, concluded that the employee’s colleague was most appropriately viewed as an applicant for employment and, therefore, met the definition of an “employee” under the NLRA. With this issue resolved, the Board majority concluded that the employee’s efforts to rally support for her former colleague’s rehiring were “clearly for the mutual aid and protection of employees” within the meaning of Section 7.

As the dissent pointed out, the Board majority should have ended its analysis there. Instead, it went a step further and alternatively held that the employee acted for mutual aid and protection even if her colleague was not a statutory employee. In doing so, the Board majority stated it was expressly overruling Amnesty International and returning to what it characterized as the “traditional” approach to nonemployee advocacy expressed by the Second Circuit in NLRB v. Peter Cailler Kohler Swiss Chocolates Co. and the Board in General Electric Co. According to the Board majority, these cases firmly establish a “solidarity principle” – wherein an employee who comes to the aid of another can reasonably expect help in return – is integral to the concept of mutual aid and protection under the NLRA.

Board Member Marvin Kaplan dissented from the decision and critiqued the Board majority for overruling Amnesty International when the facts of the case rendered that unnecessary. He explained in his dissent that the Board’s “alternative holding” is nonbinding, nonprecedential dicta, foreshadowing how this case may be challenged before courts.

The Board’s Stated New Standard for Nonemployee Advocacy

With this background in mind, the Board majority announced its new standard for assessing whether advocacy for nonemployees is for mutual aid and protection. “The question is simply whether in helping those persons, employees potentially aid and protect themselves, whether by directly improving their own terms and conditions of employment or by creating the possibility of future reciprocal support from others in their efforts to better working conditions.”

The Board identified two key ways in which the employee at issue could potentially benefit from advocating for her colleague’s rehiring. First, by advocating for her colleague’s rehiring, the employee could reasonably expect to receive her support in return when, if ever, a future need arises. Second, in seeking to ensure the hiring of a desired coworker, the employee was working to improve her own and other coworkers’ working conditions.

The Board further ruled that the legal standard announced in American Federation for Children applies retroactively.

Takeaways for Employers

The impact of the Board’s American Federation for Children decision is potentially far-reaching. In comments addressing the ruling, Board Chair Lauren McFerran stated: “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.”

Employers are left asking in response: “At what point does the prospect of future help become so remote or attenuated from the employment environment that employees can no longer be said to be acting for mutual aid and protection?” The American Federation for Children decision leaves that question unanswered. However, in an environment where social justice and other political and social movements have increasing reach and visibility, it is unlikely that the bounds of “mutual aid and protection” under the American Federation for Children standard will remain untested for long. Until then, employers faced with employees who seek to advocate for nonemployee groups and various causes should understand there is newfound legal risk and uncertainty in light of the Board’s decision.

If you have questions about the impacts of this decision or how to navigate the changing labor landscape, do not hesitate to contact our team of experienced labor attorneys to help guide you through these issues.