To the Employer, It’s “Insubordination”; To the NLRB, It’s Protected Conduct

In a presentation given to Houston employment lawyers last week, Martha Kinard – who is a Regional Director of the National Labor Relations Board – highlighted the Board’s continued focus on “protected, concerted activity,” an area of labor law that applies to unionized and non-unionized workplaces alike. 

Although many non-union employers believe labor law doesn’t apply to them, in fact, Section 7 of the National Labor Relations Act guarantees all employees – unionized or not – the right to engage in “concerted activities” for the purpose of “mutual aid and protection.”  This includes situations in which two or more employees act together to protest a working condition, or an employee speaks out on behalf of others about terms and conditions of employment. 

Employees’ Section 7 rights can impact employers in many ways, including with respect to the enforcement of social media policies and similar standards of conduct.  Kinard drew attention to three recent NLRB cases:

•           In American Medical Response of Connecticut (2010), the Board filed a complaint against an employer for firing an employee who posted vulgar and disparaging comments about her supervisor on Facebook on the ground that such comments were protected, concerted activity.  The agency stated, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”  The case settled before a final decision.

•          In Worldmark by Wyndham, 356 NLRB No. 104 (2011), a resort hotel employee challenged his supervisor for requiring employees to tuck in their shirts.  Other employees spontaneously gathered and chimed in, and the challenging employee was written up for “negativity.”  The Board overturned the discipline, finding that even unplanned employee protests about the workplace can constitute “concerted” activity that may be protected.

•          In Parexel, International, 356 NLRB No. 82 (2011), an employee complained to management and HR that certain coworkers were receiving unfair raises, and suggested that employees should take action to protest this.  She was then fired.  The Board found that her termination was to prevent her from acting in concert with her fellow employees, and that employers may not terminate employees to prevent impending protected concerted activity.

The Bottom Line for Employers:  

Employees’ Section 7 rights may include behavior that is unprofessional, disparaging, and insubordinate in its delivery or message.  When considering discipline for certain forms of misconduct, unprofessionalism, or violation of social media policies, ask first if the employee was speaking out about terms and conditions of employment.  To be sure, not all employee complaints constitute protected, concerted activity.  And some forms of expression are so offensive or disruptive as to lose protection.  It is essential for employers to stay up to date on this rapidly-changing area of the law.