Monday, May 21, 2018

The NLRB Finds Terminations Following Employees’ Group Emails Regarding Workplace Concerns Violated the NLRA

In a unanimous decision last month, a three-member panel of the National Labor Relations Board (NLRB) found that a restaurant company violated the National Labor Relations Act (NLRA) when its New York City location fired four employees after the employees emailed other employees and managers to complain about, among other things, work schedules, the company’s tip policies, and the management’s treatment of employees.

The case arose after an employee wrote an email upon her resignation complaining about management’s treatment of employees, tip policies, work schedules, and more. The email included some profanity. The now-former employee sent the email to several employees as well as the owners of the company and several managers. Four of the employees replied-all to the email with positive messages including agreeing with its contents and expressing support and gratitude for the former employee and her message. Three of the four employees had spoken with each other about the contents of the email before they sent their responses. Shortly after the employees replied to the email, all four employees were terminated.

The NLRB panel agreed with an administrative law judge’s decision following trial that the four employees engaged in protected concerted activity when they replied in agreement to the former employee’s email. The NLRB has found concerted activity when employees discuss matters of common concern, such as wages, sharing tips, working conditions, or work schedules, even when no specific group action is discussed, reasoning that such discussions often precede group action. Further, concerted activity includes activity that is engaged in, with, or on the authority of other employees, activity where individual employees seek to initiate, induce, or prepare for group action, and “individual employees bringing truly group complaints to the attention of the management.” In analyzing the email activity here, the panel noted that the email was a culmination of the complaints made by employees to management and that several of the employees consulted with one another before sending out their support for the email. Further, the fourth employee, although she did not consult with others before responding, supported the group action mentioned in the email. Accordingly, the panel found that the emails were protected concerted activity.

In addition, the panel rejected the employer’s argument that the employees’ activities were not protected due to the “nasty” and “deeply insubordinate” nature of the emails. When an employee engages in abusive misconduct during activity that is otherwise protected, the employee forfeits the NLRA’s protection. The panel concluded, however, that the replies were not so egregious as to cause them to lose the protection of the NLRA. The panel emphasized that the email was part of an ongoing dialogue between the employees and the employer and was a reaction to the employer’s failure to correct problems raised by employees; the email contained only a little profanity and was “merely a critique” of the employer’s management style; the employees that responded did not add to the email with any negative comments of their own; the email was nonpublic and accordingly did not cause a loss of reputation or business for the employer; and there was no disruption of the employer’s business.

The panel ordered the employer to reinstate the employees and to reimburse them for any loss of earnings and other benefits suffered as a result of the discrimination against them, among other remedies.

In light of the NLRB’s continued focus on protected concerted activity, employers should exercise caution in taking adverse actions based on employees’ group emails or other electronic communications that include discussions related to the employees’ terms or conditions of employment.

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