August 25, 2023

NLRB Strikes Again! An Employee’s Griping May be Legally Protected

On August 2nd the National Labor Relations Board (NLRB) issued a ruling on employers’ workplace policies that have a “chilling” effect and violate the National Labor Relations Act (NLRA).

On August 25th, the NLRB issued another ruling against an employer. In this case, it was a small manufacturer in Pennsylvania that employed 26 to 33 employees.

During an all-hands meeting in the midst of the COVID-19 outbreak, an employee was “griping.” He asked why they were still working when the employer was not an essential business; stated that he didn’t think they had the proper precautions in place for the pandemic; and “we shouldn’t be working.” Other employees raised questions during the meeting.

Eight days later, the employee was fired for texting during his work time. The employee had been previously counseled for “performance deficiencies, including excessive talking, distracting coworkers, and using his cell phone,” but no written warnings were issued.

So, there were (at least) two questions. Was the employee’s “griping” at an all hands meeting NLRA protected activity; and (2) if so, was his firing in retaliation for that protected activity?

Answers? Yes and Yes.

  1. The NLRB found the employee’s statements in the group meeting “sought to initiate, induce, or prepare for group action, or was related to group action.”  In the days between his “griping” and being fired, he talked to coworkers and urged them to talk to management about the company’s COVID-19 practices.
  2. The employee’s protected activity “was a motivating factor in his discharge, and that the [employer] failed to prove that it would have discharged [the employee] even absent this conduct.”

Lessons Learned? Talk to your company’s employment and/or labor counsel. Give employees a voice by which they can civilly raise any work-related concerns without fear of retaliation.