An employee who was discharged after protesting an admittedly illegal policy was entitled to reinstatement and back pay despite having acted on his own, the federal appeals court in New York has ruled, enforcing a National Labor Relations Board order. National Labor Relations Board v. Long Island Ass’n for AIDS Care, Inc., No. 16-2325 (2d Cir. Aug. 31, 2017). The Court stressed that “even one individual employee” may not be required “to abide by unlawful restrictions as a condition of employment.”


LIAAC provides HIV/AIDS prevention counseling and treatment. Marcus Acosta had been a community outreach specialist at LIAAC about one year when he was discharged.

Confidentiality was a high priority for LIAAC. It required all employees to sign a “Confidentiality Statement” at the time of hire. The Confidentiality Statement directed employees to keep information concerning clients and their medical conditions confidential and prohibited employees from disclosing information such as wages, salaries, and working conditions and from speaking to the media about LIAAC.

Acosta had signed the Confidentiality Statement without incident at the time of hire. During his employment, Acosta had performance problems and had several conflicts with his supervisors. Shortly after his one-year anniversary, LIAAC asked him to sign the Confidentiality Statement again. He signed it, but indicated on the document that he was doing so “under duress” in protest of the requirements to keep wages and working conditions confidential. He was discharged. Acosta then filed an unfair labor practice charge challenging the discharge under the National Labor Relations Act.

Unlawful Policies

The NLRB concluded LIAAC’s prohibitions on discussion of wages and working conditions and on speaking with the media were unlawful. These types of rules have long been held to violate employee rights under the NLRA. It ruled that LIAAC’s discharge of Acosta for protesting those prohibitions was unlawful and ordered that he be reinstated with back pay.

On appeal to the Second Circuit Court of Appeals, LIAAC claimed Acosta was discharged for insubordination, i.e., refusing to the sign the Confidentiality Statement without the “under duress” qualifier. It argued that, since he engaged in insubordination on his own, not with any other employee, he was not engaged in “concerted activity” protected by the NLRA, and therefore, LIAAC may discharge him.

The Court disagreed. It stated:

An employer may not require even one individual employee to abide by unlawful restrictions as a condition of employment. That the employees have not yet organized to protest the unlawful nature of the restriction at issue does not make it any less unlawful. The contrary rule urged by LIAAC, that an employee can be required to comply with by an unlawful policy and the employee is only protected from the unlawful policy if he or she actively organizes with other employees against it is illogical and untenable.


The decision demonstrates the risks employers run when their personnel practices and policies are not carefully vetted to ensure legal compliance. It is critically important to ensure that employment policies are not only carefully and thoughtfully drafted to meet the needs of the business, but also that they are fully legally compliant.  Policies which are lawful and properly and uniformly applied go a long way toward substantially reducing the risk of liability from employment-based claims.  Had the policy here been lawful, the employer’s argument that the employee was lawfully discharged because he acted alone may have been accepted by the Court.