11th Circuit Extends Epic Systems to Interrogation Claims

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If an employee waives the right to a collective action, an employer does not violate the NLRA by interrogating the employee about conversations concerning collective actions.

On May 21, 2018, the United States Supreme Court issued its decision in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018).  The Court held that employer-employee agreements do not violate the National Labor Relations Act (“NLRA”), even if they contain class and collective action waivers and stipulate that employment disputes must resolved by individualized arbitration.  On July 31, 2018, the Eleventh Circuit Court of Appeals logically extended Epic Systems to interrogation claims under the NLRA.  See Franks v. National Labor Relations Board, No. 16-10644, 2018 WL 3640818 (Jul. 31, 2018).

While employed by Samsung Electronics America (“Samsung”), Jorgie Franks spoke to multiple co-workers about the possibility of filing a collective action against Samsung for failing to pay overtime.  Those conversations made their way to ear of Samsung’s Human Resources Business Partner, who called and e-mailed Franks about her communications with co-workers.

In January 2015, long before the Supreme Court released Epic Systems, Franks filed a claim with the National Labor Relations Board asserting three violations of the NLRA.  First, she claimed that her employment agreement impermissibly required her to waive class and collective actions.  Second, she claimed that Samsung’s Human Resources Business Partner interrogated her in violation of the NLRA.  Finally, she claimed that the Human Resources Business Partner wrongfully issued a “do not talk order.”  On February 3, 2016, the NLRB found in Ms. Franks’s favor on the first two claims, but ruled that Samsung did not issue a “do not talk order.”

Samsung and Franks both appealed to the Eleventh Circuit, but the focus of the Franks opinion was the NLRA interrogation claim.  The Eleventh Circuit relied upon Epic Systems to quickly reverse the NLRB on the issue of waiving collection action rights.  Then, the court focused on the interplay between Epic Systems and Section 8(a)(1) of the NLRA.  “An employer violates section 8(a)(1) of the Act by coercively interrogating its employees about their [protected] activities.”  “An interrogation is coercive if, in light of ‘all the surrounding circumstances, ‘its probable effect’ tends to interfere with the employees exercise of their [rights under § 7 of the NLRA.]”

In Franks, the Section 7 right in question was “the ‘protected activity of bringing a collective action lawsuit’ against Samsung.”  Yet, under Epic Systems, “Franks validly forfeited the right to pursue a collective action against Samsung when she signed Samsung’s employment agreement.”  “Put simply, Franks’ interference claim fails because she had already given up the very right with which Samsung allegedly interfered.”

In a footnote, the Eleventh Circuit was careful to limit its decision to “the protected activity of filing and participating in a collective action lawsuit.”  Nevertheless, Franks is an important extension of Epic Systems and suggests that employees can be interrogated about any NLRA rights that they have waived in their employment agreements.

 

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