On May 16, 2017, a two-member majority (Members McFerran and Pearce) of the National Labor Relations Board held that it was an unfair labor practice for the Grand Sierra Resort &Casino (GSR) to bar a former employee from its premises after she filed a class and collective action lawsuit against the employer.

The charging party, Tiffany Sargent, a beverage supervisor, worked at GSR for less than a month in December 2012. After her employment ended, she frequently socialized at GSR’s nightclub, where her boyfriend was employed.  In June 2013, six months after her employment with GSR ended, Ms. Sargent and another employee filed a class and collective action lawsuit against GSR for unpaid wages, alleging violations under the Fair Labor Standards Act (FLSA) and Nevada law.  Thereafter, GSR’s counsel sent her a letter advising her that due to the ongoing litigation, she was barred from the premises, invoking Nevada’s anti-trespass statute.   The NLRB held that in barring Ms. Sargent from GSR’s premises after she filed her lawsuit, GSR violated Section 8(a)(1) of the National Labor Relations Act, explaining that GSR expressly retaliated against her for engaging in her protected concerted activity in filing the class and collective action lawsuit.

In his dissent, NLRB Chairman Miscimarra argued two points.  First, he disagreed that that GSR’s counsel’s letter, sent in conjunction with Ms. Sargent’s non-NLRA lawsuit, violated Section 8(a)(1) of the NLRA, explaining that there was no allegation that excluding her from her former place of employment affected her wages, hours, or terms and conditions of employment.  Nor was there any evidence that barring her from the premises prevented her from pursuing her lawsuit.  Second, Chairman Miscimarra stated that the Board must weigh the interest of employees in concerted activity against the interest of employers in operating their businesses in a particular manner.  The record provided no support for a finding that GSR’s action interfered with any NLRA-protected conduct by Ms. Sargent or anyone else.  He noted that the FLSA has its own anti-retaliation provision and that the NLRB is not permitted to take it upon itself to assist in the enforcement of other statutes, stating,  “[t]he Board was not intended to be a forum in which to rectify all the injustices of the workplace.”

The decision provides a cautionary note when dealing with former employees who sue their employers when those employers operate facilities open to the public.