Wednesday, February 2, 2011

One is the loneliest number – unless you’ve filed an unfair labor practice charge

Lots of employers have lots of policies that they think are legal, but in fact are not. One perfect example is policies that prohibit employees from discussing their wages. Under the National Labor Relations Act, employees, whether unionized or not, have the right to engage in protected concerted activity. Because discussions of wages and other terms and conditions of employment qualifies as protected concerted activities, retaliation for the exercise of that right violates federal labor laws.

Protected concerted activity presupposes that more than one employee is engaged in the conduct. What happens, however, if an employer discovers that an employee is going to engage in protected concerted activity and preemptively terminates the employee before he or she has the chance.

In Parexcel International (1/28/11) [pdf], the NLRB concluded that a preemptive termination—that is, one that attacks an employee who intends to complain about wages—violates federal labor laws, even though the employee has not yet engaged in any concerted activity. As the NLRB explained;

That conclusion is supported not only by the plain text of Section 8(a)(1), by the policies underlying Sections 7 and 8(a)(1), and by the authorities cited, but it is consistent with other lines of Board precedent holding that, under certain circumstances, employees who have engaged in no concerted activity at all are protected from adverse action. For example, an adverse action taken against an employee based on the employer’s belief that the employee engaged in protected concerted activity is unlawful even if the belief was mistaken and the employee did not in fact engage in such activity. Similarly, a mass discharge undertaken without concern for whether individual employees were engaged in concerted activity—where “some white sheep suffer along with the black”—violates the Act. What is critical in those cases is not what the employee did, but rather the employer’s intent to suppress protected concerted activity.

Some commentators are already commending the NLRB for its expansion of employee workplace rights:

Professor Richard Bales, at the Workplace Prof Blog:

It seems to me that the Board is expanding the definition of protected-concerted activity a bit more then it's admitting.  Now, every time an employee complains and is subsequently fired, the employee can file an unfair labor practice charge, and it's a fact issue as to whether the employer was motivated by a desire to nip the complaint in the bud or by something else.

Randy Enochs at the Wisconsin Employment & Labor Law Blog:

This is a major victory for employees across the land and could lead to an increase in litigation but it's not exactly easy to prove that an employer terminated an employee to "nip-it-in-the-bud" or feared the employee would subsequently engage in protected activity making it harder to terminate them. Hopefully the end result is employers perhaps taking the time to ease employee concerns over working conditions instead of simply terminating the cause of stir.

Indeed, it certainly appears that Parexcel expands employee rights by creating a colorable unfair labor practice any time an employee suffers an adverse action after complaining about anything.

Let me take a different approach from the perspective of an employers’ advocate. If the NLRA covers any adverse action taken against any employee who complains about a term or condition of the workplace, why doesn’t the NLRA preempt any state law claim raising the same issue? For example, recently the 6th Circuit used a broad interpretation of federal preemption to dismiss a state law wrongful termination claim. Is it possible that by attempting to expand employee rights, the NLRB actually contracted them? I don’t profess to know the answer to this question, and we will have to wait for some bold employer to litigate the issue. I’m merely tossing it out there as a possible silver lining in an otherwise anti-business decision by the NLRB.

[Hat tip: LaborRelated]

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