09-26-2017
An employee who has not yet engaged in concerted activity is still protected from having to agree to a restriction on that activity.
Marcus Acosta was an outreach coordinator at the Long Island Ass’n for Aids Care, Inc. (LIAAC). All employees were required to sign a confidentiality agreement upon hire to keep client information private. These agreements also required employees to keep silent on wages, salaries, and working conditions. Mr. Acosta signed the agreement upon his hire. However, when he was asked to sign it again on his one year anniversary, he did so “under duress.” The “duress” was to having to keep wages and working conditions confidential. He was fired and filed an unfair labor charge with the National Labor Relations Board (NLRB).
The Second Circuit Court of Appeals upheld the NLRB’s decision in Mr. Acosta’s favor. LIAAC had argued that since Mr. Acosta had been insubordinate on his own behalf (by putting “under duress”), he had not been engaged in “concerted activity” protected by the National Labor Relations Act (NLRA). The appellate court held that, “An employer may not require even one individual employee to abide by unlawful restrictions as a condition of employment. That employees have not yet organized to protest the unlawful nature of the restriction at issue does not make it any less unlawful.”