For most employers, the majority of the disputes they experience about discipline and termination of employees arise out of the protections employees enjoy from federal and state anti-discrimination statutes. However, employees also enjoy rights that are protected by the NLRA, even those employees who are not represented by a labor union. As we have addressed recently, disciplining employees based on statements about their employment made via social media can potentially present problems. Employers also should be aware of the risks involved when taking action against employees for comments made through more traditional medium. Recently, the NLRB found that an employer violated federal labor law when it fired employees for participating in a television interview and making comments critical of their employer.
Employees are entitled to engage in protected concerted activity for mutual aid or protection under Section 7 of the NLRA. It is unlawful for employers to interfere with, restrain, or coerce employees in the exercise of these rights or to take adverse action to discourage employees from engaging in union activities. An employee’s right to comment about workplace issues is not unlimited — disloyal disparagement of an employer will not fall under the NLRA’s protection.
In the recent MasTec NLRB decision, an employer changed its method of compensating its technicians, making them subject to a back-charge if certain performance measures were not met. The technicians complained to their employer about the new pay method, but to no avail. Several weeks later, a group of technicians went to a local television station in their uniforms and were interviewed as a group for a news story. In the interview, the technicians voiced their objection to the new pay system and claimed they had been urged to tell lies to customers. Shortly after the interview aired, the technicians were terminated by their employer.
The employer claimed that while the technicians’ statements on television were related to a labor dispute, the statements were false, inaccurate, and misleading. Unfortunately for the employer, the NLRB disagreed, finding that the technicians’ communications and statements during the interview were not maliciously untrue or made with reckless disregard for their truth; any departures from the truth had been no more than good-faith misstatements or incomplete statements. Most critical in the NLRB’s decision that the technicians’ conduct was protected was the connection between the employees’ statements and their pay dispute with their employer.
Regardless of whether it occurs on television or some form of social media, employees do enjoy certain protection allowing them to voice labor concerns. Whether or not an employee’s specific conduct is protected from employer action depends on the particular circumstances surrounding the conduct. For example, employees are not protected if they publicly criticize an employer’s product and business practices without connecting their criticisms to a labor dispute. Additionally, an employer may still terminate employees when their conduct amounts to disloyal disparagement of the employer. Before taking action against an employee for “speaking out,” an employer should carefully evaluate whether an employee’s comments or conduct does indeed relate to some labor dispute, such as the technicians’ pay in MasTec.