Thursday, March 22, 2012

Employees Fired for Wearing Orange?

Even non-union employers need to be careful about their labor law obligations.  Most readers have either given or heard this advice multiple times, but labor law risks are still sometimes overlooked.    As an example, in one of the strangest employment-related news stories of the week, a Florida law firm  reportedly fired 14 employees because they wore orange to work on a Friday.  According to the news report, the law firm called the employees into a conference room and an executive accused them of engaging in a protest.  An employee explained that they were not engaged in a protest, but simply had a tradition of wearing orange on payday Fridays in anticipation of going out for happy hour.  Despite the explanation, and despite the fact that there was no policy against wearing orange and no employee had ever been warned or disciplined for wearing orange, all fourteen employees were fired.

While it’s unclear from the facts articulated in the news story whether a labor law violation was committed, I suspect that this employer will soon receive an unfair labor practice charge.   Even non-unionized employees have a right under the National Labor Relations Act to engage in protected concerted activity.  The employees’ decision to wear orange on the same day is certainly “concerted” activity, so it may be protected by the NLRA.  Whether these employees engaged in protected concerted activity is the more difficult question.   Employees’ activities are generally protected when they work together to improve working conditions.   If the employees had actually been engaged in a protest about their working conditions, firing them for that reason would have been a violation of the NLRA.  Here, there apparently was no protest, so the question is whether it would be a violation of the NLRA to fire employees who the employer thinks are engaged in a protest about working conditions, even if they are not.   The NLRB has held, and the D.C. Circuit has confirmed,  that an employer violates the NLRA when it takes adverse action against an employee because of a mistaken belief that the employee engaged in protected concerted activity.

Non-union and union employers alike who violate the NLRA can be required to pay back pay, and awards can be significant.  If the law firm in this story is found to have violated the NLRA, it will likely be ordered to reinstate all the employees and will be subject to other penalties as well. 

I wouldn’t be surprised if this law firm faced other legal claims, in addition to an unfair labor practice charge.  While we don’t know all the facts and circumstances, I would guess that the decision to terminate the employees in this case was not preceded by careful consultation with HR or employment law counsel.  Careful consideration of a termination decision is always well advised, and often helps to prevent a costly legal claim or a decision that a business might later regret.

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