Not a Limited, Confined, or Private Matter - Who Is an 'Employee' Under the National Labor Relations Act
Labor Law Journal › Vol. 59 Nbr. 1, April 2008
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Summary
The definitions of "employee" and "employer" are of critical importance under all labor and employment laws, for they identify who is covered, and thus protected, by those laws. In the case of the National Labor Relations Act (NLRA), only those who meet the definition of "employee" are protected by the NLRA. For example, in Lechmere Inc v NLRB, the Supreme Court's premise that union organizers were not employees meant that they had no NLRA-protected right to discuss unionization with Lechmere's employees on Lechmere's property. In contrast, three years later in NLRB v Town & Country Electric Inc, the Court found that union salts were employees and thus had rights directly protected by the NLRA. The NLRA's legislative history and the policies of both the NLRA and the Labor Management Relations Act demand that, in deciding cases of this sort, the Board interpret § 2(3) broadly.
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Not a Limited, Confined, or Private Matter - Who Is an 'Employee' Under the National Labor Relations Act
The definitions of "employee" and "employer" are of critical importance under all labor and employment laws, for they identify who is covered, and thus protected, by those laws. In the case of the National Labor Relations Act (NLRA), only those who meet the definition of "employee" are protected by the NLRA. For example, in Lechmere, Inc. v. NLRB,1 the Supreme Court's premise that union organizers were not employees meant that they had no NLRA-protected right to discuss unionization with Lechmere's employees on Lechmere's property. Thus, the Court concluded that the union organizers only had rights that were derivative of the rights of Lechmere's employees. In contrast, three years later in NLRB v. Town & Country Electric, Inc.,2 the Court found that union salts were employees and thus had rights directly protected by the NLRA.
The issue of who is an employee is now before the National Labor Relations Board in New York New York hotel, LLC.3 The importance of this case is signaled by the Board's decision to hold oral argument and invitation to file amicus briefs. Briefly, the case raises the question whether employees of a subcontractor, the Ark Las Vegas Restaurant Corporation, who perform their work for Ark on the premises of the New York New York hotel and Casino (NYNY), have a statutory right to distribute handbills to guests and customers while on New York New York's property during the Ark employees' off-duty hours. The handbills protested the Ark's nonunion status and wages.The specific questions on which the Board requested briefing and argument suggest that the Board vi...See the full content of this document
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