A slew of decisions that were pending before the National Labor Relations Board (“NLRB” or the “Board”) have been issued at the end of August, coming at the close of Member Wilcox’s term.  In American Federation for Children, Inc., 372 NLRB No. 137, a 3-1 majority reversed recent precedent yet again, finding that employees are engaged in protected activity and acted for the purpose of mutual aid or protection when advocating for a former employee.  The Board found that the employee’s actions were protected regardless of whether the former employee on whose behalf the employee was voicing concerns was a statutory employee under the National Labor Relations Act (“NLRA” or the “Act”). 

In so doing, the Board returned to over half-century-old precedent that concerted activity by statutory employees on behalf of nonemployees is protected by the Act when it can benefit the statutory employees, reversing its recent decision in Amnesty International, 368 NLRB No. 112 (2019).  In Amnesty International, the Board held that “[a]ctivity advocating only for non-employees is not for ‘other mutual aid or protection’ within the meaning of Section 7 and accordingly does not qualify for the Act’s protection.” (See our discussion here.) 

Factual Background

This case centered around the efforts of an Arizona-based employee for a national school-choice advocacy organization to advocate for the reinstatement of a former employee that had become ineligible to work in the U.S.  The employee met with a new manager about the former employee, but developed concerns the manager was not supportive of rehiring the former employee and not supportive of the organization’s broader pro-immigration efforts.

The employee repeatedly raised concerns about the manager’s management practices, concerns that the manager was “anti-immigrant,” and going so far as to assert that the manager was racist.  Investigations into the manager and the employee were conducted, concluding the employee’s allegation of racial hostility by the manager was unsupported.  Nevertheless, the employer planned to terminate the employee for creating a toxic atmosphere.  As a result, the employee resigned.

Applying the Board’s decision in Amnesty International, the ALJ found the employee’s actions were not protected by Section 7 because they were for the benefit of a nonemployee (the former employee that had lost their work eligibility).

The Board’s Decision

First, the Board found the employee’s efforts constituted concerted activity.  Having found the employee engaged in concerted activity, the Board then found the ALJ erred in applying Amnesty International, as the employee acted on behalf of another statutory employee, where the employee and those the employee solicited for support, stood to benefit by the reemployment of the former employee.  The Board explained that under the “solidarity principle,” employees can invoke Section 7 for the mutual aid and protection for issues affecting nonemployees, as long as those efforts also help statutory employees.  The Board went on to explain the reasoning underlying the Amnesty International decision did not comport with work realities, where it is entirely reasonable for statutory employees to support nonemployees for mutual aid or protection of the statutory employees where the two groups work together for the same employer. 

The Board made the alternative holding that “the mutual aid or protection” element had been satisfied even if the former employee was not a statutory employee, overruling Amnesty International.  The Board also reaffirmed precedent that job applicants are statutory employees and worker immigration status is immaterial to their employee status under the Act.

Having overruled Amnesty International and finding that the employee had engaged in protected activity, which “effected a fundamental change to the legal backdrop of many of the other issues presented” in the case, the Board severed and remanded the remaining allegations to the ALJ for further consideration.

Member Kaplan’s Dissent

Board Member Kaplan accused the majority of overreaching, improperly departing from precedent not applicable to the case before it.  Member Kaplan indicated that the facts before the Board did not present an actual Amnesty International issue, because the employee was engaged in protected activity in advocating for another statutory employee.  Member Kaplan accused the majority of reframing the issue before Amnesty International to overrule it. 

Member Kaplan also took issue with the majority’s remand of the remaining allegations, arguing the employee’s protected activity played no role in her discharge, which was based on the unprotected accusations of racism against the manager. 


Consistent with its flurry of recent pro-employee decisions, this decision serves as yet another warning to employers.  It is clear that the majority took issue that Amnesty International could be interpreted as standing for the proposition that advocating for nonemployees is never for the mutual aid or protection of employees.  This decision restores precedent of protections for employee advocacy on behalf of independent contractors, supervisors, interns, volunteers, and any other individual who may be excluded from the definition of employee in Section 2(3) of the Act. 

With this ruling, employers now must carefully consider whether the employee’s advocacy concerning a nonemployee benefits the employee.  The likely result will be a series of challenges to individual advocacy on behalf of statutorily excluded individuals, where the operative question is whether the advocacy potentially could benefit the employees.  

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Austin McLeod Austin McLeod

Austin D. McLeod is a law clerk in the Labor & Employment Department.

Austin assists clients in a range of labor and employment matters. Prior to joining Proskauer, Austin interned at the PGA TOUR and worked as a litigation paralegal at a major…

Austin D. McLeod is a law clerk in the Labor & Employment Department.

Austin assists clients in a range of labor and employment matters. Prior to joining Proskauer, Austin interned at the PGA TOUR and worked as a litigation paralegal at a major financial services company.

During law school, Austin worked as a labor relations law clerk for the National Football League. He also served as a staff editor of the NYU Journal of Intellectual Property and Entertainment Law and President of the Student Lawyer Athletic Program.