Recent Developments Concerning Employer Defense of NLRA Preemption as a Bar to Wrongful Termination Lawsuits

As most California employers know, an employee in this state can sue an employer for wrongful discharge if the employee can show that his or her termination violated a “substantial public policy,” embodied in a statute or constitution.   However, certain types of wrongful discharge claims that purport to invoke public policy theories of recovery might be subject to a federal preemption defense based on the National Labor Relations Act (the “NLRA”).  Among other things, the NLRA protects an employee’s right to engage in union and other “concerted” activity for “mutual aid and protection;” hence, if an employee filed a lawsuit alleging that he was wrongfully terminated because he complained about oppressive or unlawful workplace practices affecting not just him but his co-workers, such a claim could be subject to NLRA preemption based on the argument that the National Labor Relations Board is the federal agency with the exclusive jurisdiction to adjudicate such claims.

Recently, a state appeals court rejected this defense in a wrongful termination case where the circumstances showed that, when presenting complaints to his employer, the employee acted alone; that is, without the participation or authorization of other employees.  The case, Haney v. Aramark Uniform Services, Inc., issued on August 11, 2004.

In Haney, the employee maintained that he was fired because he complained to management about fraudulent billing practices and because he refused to implement those practices.   When questioned at deposition about his motivation for his complaints to management, the employee said that he “felt” he was voicing the complaints not just on his own behalf but on behalf of his co-workers.  The court held that this was insufficient evidence to establish the NLRA preemption defense.  The court concluded that while the employee’s motivation might satisfy the “mutual aid and protection” requirement for the defense to apply, it did not satisfy the “concerted activity” prong of the defense.  According to the court, “concerted activity” cannot be established by the employee’s motivation but must be independently established by a showing that other employees either participated in the presentation of the complaints or authorized him to bring the complaints on their behalf.

Persons wishing further information or who have questions or comments about either this case or any of the cases that have appeared on this website can contact any of the attorneys at Epstein, Turner & Song.