Asking questions in a wage and hour deposition to uncover if employees discussed pay concerns could give rise to an allegation that the probe violated their rights to act collectively, as highlighted by a November ruling against a chemical manufacturer, employment attorneys told Law360. …
Paul DeCamp, who represents employers as co-chair of Epstein Becker Green's wage and hour practice group, said the administrative law judge's decision may force defense attorneys to second-guess themselves and keep them from giving clients their best advocacy.
"You don't know until an ALJ decides after the fact whether your actions give rise, in the board's view, to an unfair labor practice," he said. "Meanwhile, as an advocate in a wage and hour case, you have a duty to advocate zealously for your client."
Unlike district courts, which stand ready to field legal questions arising under any number of statutes in a single case, NLRB officials are solely focused on the National Labor Relations Act, DeCamp said.
"That will lead to a heavy bias in which the NLRB and its agents will give maximum weight to NLRA concerns and minimum weight to concerns arising under other statutes," he said.
The NLRB's administrative law judges apply their understanding of the board's case law, DeCamp said. But as the board develops its precedents on how the NLRA applies, it may overreach, especially where the labor law intersects with other statutes, he said.
DeCamp said his view is that an attorney defending an employer in a wage and hour suit should not self-censor deposition questions because they're concerned about an unfair labor practice decision.
"You can't litigate a case like that, especially when we're talking a wage and hour case where the amount in controversy could be millions and millions of dollars," he said. The penalty for an unfair labor practice, on the other hand, is typically lighter, he noted. It's often an order for the employer to cease and desist from the offending conduct and post a notice, so employees are aware the NLRB found it committed violations.
Although the risks associated with an unfair labor practice charge may not outweigh the risks of a wage and hour suit, they aren't trivial, DeCamp added. The client should get to decide how to proceed, he said.
"If I'm defending a case and this type of NLRA tangential issue appears, I think it is important to advise your client that this is something they ought to be aware of," he said. "Different clients may have different risk tolerances for this kind of issue."