Often Overlooked Employer Landmines

One of the most common employer mistakes, especially in non-union environments, is the failure to recognize that employees have a legally protected right to protest or criticize working conditions. That protection resides in the National Labor Relations Act (the “Act”), regardless of whether employees are union represented. Recently, a non-union employer once again learned this lesson the hard way.

The National Labor Relations Board (the “Board”) held in late May 2019 that a non-union employer violated the Act when it terminated an employee—an engineer—shortly after he expressed dissatisfaction with the company’s hiring and compensation practices. More specifically, the employee complained to a manager about excessive workloads at a large team building lunch. The employee also publicly suggested at the same lunch that the company should hire more engineers rather than spend $400,000 on a new executive. Several engineers who were present supported the complaint.

The manager was predictably embarrassed and offended, and initiated a subsequent investigation into the question of whether the employee improperly obtained the compensation information on the newly hired executive. Eventually, the employee was fired, and then challenged his termination with an unfair labor practice charge.

The company certainly hurt its case by providing several inconsistent rationales for the employee’s termination. The Board ultimately found these explanations to be a pretext for the “real motive” — firing the employee for his critical and offensive remarks.

This is not new law. Every year, the Board decides similar issues. Yet employers are still sometimes unaware.

Remember, the Act exists to protect the right of private-sector employees to join together, with or without a union, to improve their wages and working conditions. It gives employees the right to “mutual aid or protection.” When employees protest working conditions, on behalf of or with a group, it is often legally protected. That remains true even when the protest is offensive or embarrassing to the target.

• The Act does not limit the time, place, or manner in which employees can engage in legally protected concerted activity. Protected activities also include:
• Discussing wages, benefits, or other working conditions with co-workers;
• Refusing to work, or walking off the job, to protest unsafe or unfair work conditions;
• Circulating petitions to protest or change working conditions, or to demand pay increases; and
• Criticizing management or company business practices, even on social media.

Remember also that policies can have the same chilling or illegal effect under the Act. For example, publishing or maintaining handbook rules that infringe upon employees’ right to openly discuss working conditions (including wages), to criticize management or working conditions, or to protest unfair treatment can also violate the Act.
Other examples of often overlooked prohibited conduct include:

• Granting wage increases deliberately timed to discourage employees from organizing a union;
• Denying off-duty employees access to outside nonworking areas of your property, unless justified by a compelling business reason and consistently enforced;
• Questioning employees about their own or their coworkers’ union sympathies;
• Spying on union activities, or creating the appearance of spying to intimidate employees.

These types of violations are often inadvertent. Employers typically don’t cross those legal boundaries when they recognize the legal implications in advance. That’s why education among the decision-makers on these types of legal landmines is so important. As the time tested cliché goes – “an ounce of prevention is worth a pound of cure.”

Clay Haag, Summer Associate
Mark McQueen