Tag Archives: Protected Concerted Activity

Does the First Amendment Apply at Your Company?

Does the First Amendment protect an employee in Texas, allowing him to say whatever he wants on the job–to take a knee in protest, to write a manifesto about how women don’t belong in the tech sector, or to tell the CEO of his company to “kiss my a—, Bob”?

Not a chance. The First Amendment to the Constitution of the United States of America says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

By prohibiting Congress from passing laws that abridge freedom of speech, the Constitution did not limit a private sector employer’s right to fire an employee (on the other hand, government employees have some First Amendment protections).

In addition to no constitutional bar, businesses in Texas are protected because Texas follows the “at will” employment rule, meaning a private employer can fire an employee for a good reason, a bad reason or no reason at all, including firing an employee because the employer didn’t like something the employee said, either out loud or symbolically.

So, if Jerry Jones had decided to fire any Dallas Cowboy who kneeled during the National Anthem before the Monday Night Football game, the First Amendment would not have protected the player. Neither would Texas law. Interestingly, Jones came up with an inoffensive compromise by encouraging his players to kneel before the anthem to protest racial injustice and even kneeling with them. By the time the anthem played, the whole team was standing in unity, with arms locked together.

Google also was unhampered by the First Amendment when the company fired an employee in August for writing a manifesto blasting Google culture of diversity. Particularly, the employee argued that women occupied fewer leadership positions in the tech industry because of unsuitable personalities. For example, he said that women are more anxious, and therefore unable to handle the stress of high-powered leadership positions. He concluded that efforts by Google to place more women in technology and leadership were “unfair, divisive, and bad for business.”

However, the First Amendment’s application is not the end of the inquiry. There are other laws besides the First Amendment that an employer has to consider (in consultation with the company’s employment lawyer) before firing an employee for expressing herself.

  • Is the employee’s speech related to the employee’s religion? Employers even in the private sector cannot discriminate on the basis of religion and also must accommodate a person’s religion. The discrimination laws always trump the “at will” rule.
  • Is the employer allowing one group to express themselves but not another protected class? For example, if only African-American players for the Dallas Cowboys had kneeled during playing of the Star-Spangled Banner, but some white players failed to put their hands over their hearts, Jerry Jones may have faced a racial discrimination lawsuit if he had fired only the kneeling players for disrespect.
  • Are you punishing any employees for speaking a language other than English at work? For safety or productivity purposes, there may be a limited way in which you can do this during actual work time, but it is a very tricky area of the law and you don’t want to attempt this without serious consultation with your employment attorney.
  • Is the employee complaining about a safety violation, a crime or other public policy matter? In that case, there may be whistleblower statutes that protect the employee.
  • Is the employee expressing problems with wages, hours, shifts, policies or other terms and conditions of employment with other employees? Then the National Labor Relations Act may prohibit you from firing the employee because she is participating in “concerted activity” under this labor statute, even in a non-unionized workplace. This is what happened with the coal miner who sent a paltry bonus check back to the CEO with the words “kiss my a–, Bob” on them. A court made the coal company return that employee to work after he was fired, because his protest was protected concerted activity involving his pay.
  • Texas employers are prohibited from taking adverse action against an employee based on who the employee voted for or for refusing to reveal how he or she voted. Employers must allow employees time off to vote and to take leave to attend a local or state political convention and cannot threaten or retaliate against the employee for such attendance.

Interestingly, there are times when an employer almost has no choice but to fire an employee for expressing himself. For example, if an employee is sexually harassing another employee with lewd comments, suggestive emails and/or pornographic pictures, the hostile environment the harasser is causing with his words and actions may require the employer to fire him after completing an investigation, both to protect the company and the victim.

Cussing Out the CEO

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What is the proper response from the company when two employees express their anger at the CEO when they receive bonus checks by returning the checks, voiding them, and writing, “kiss my a– Bob,” and “eat sh– Bob” on the checks? According to the National Labor Relations Board, firing them is improper.

After returning the checks, the employees posted pictures of the checks on a private Facebook page.  Other employees followed suit by also voiding their checks and posting them to the Facebook page.  However, only the first two employees wrote profanities on their checks.  Not very long following this incident, both employees were fired.  They filed grievances shortly thereafter with the NLRB.

The NLRB reinstated the employment of the two West Virginia coal miners.  After their union voted against bonuses based on productivity, the coal mine management decided to implement the bonus program anyway.  Apparently the two miners were unimpressed with the company’s generosity.

The NLRB judge who presided over the case found that the two miners had been wrongly discharged and that the words on the checks, “while profane and offensive, were nevertheless expressions of protest and outrage over what those employees viewed as implementation of a plan that would adversely affect their safety conditions and which constituted what the employees believed was a surprising violation of the terms of the collective-bargaining agreement.” Continue reading Cussing Out the CEO

NLRB Crackdown on Employee Handbooks

Even if your HR department is on top of things, some of the policies in your employee handbook probably are now unlawful. Confidentiality policies, professionalism policies, employee conduct policies, solicitation policies, conflict of interest policies, social media policies, and others have come under intense scrutiny by the National Labor Relations Board (“NLRB”) in the last six months. The result could be an unfair labor practices claim filed against your company, even though your company is not unionized. Continue reading NLRB Crackdown on Employee Handbooks

Employee Free Speech on Facebook

Is your employee free to post a Facebook rant about one of your supervisors that says, “Bob is such a nasty M___ F___ don’t know how to talk to people!!! F___ his mother and his entire f___ing family!!! What a loser!!! Vote YES for the UNION!!!”?

Many of my West Texas employers would fire the employee on the spot for that Facebook post.  But if you called an employment attorney, you would be advised against that termination because the National Labor Relations Board (NLRB) just decided last month that the employer involved in this mess had to reinstate the foul-mouthed employee and pay him lost wages.

The NLRB reasoned that the employee’s vulgar rant was “protected, concerted activity” protected by the federal act relating to the formation of unions. The NLRB noted that the harassment policy in the company’s handbook didn’t prohibit vulgar or offensive language, even though that policy was cited as the basis for the discharge. No employee had ever been fired by this employer before for obscene language. In addition, the company was in the middle of an election to decide if the workplace would be unionized.

However, even if your workplace will never be unionized, your actions as an employer can be scrutinized on the basis of employees engaging in “protected, concerted activity” to improve their pay and working conditions. For a summary of the cases that the NLRB has pursued against non-union employers, see the NLRB’s new website dedicated to their enforcement of that law. http://www.nlrb.gov/rights-we-protect/protected-concerted-activity

The NLRB has also been very busy telling non-union employers what can and can’t be in an employee policy manual. On March 18, 2015, the NLRB’s general counsel released a memo concerning those employment policies that the NLRB believes have a “chilling effect” on employees’ rights to engage in protected activities. http://www.nlrb.gov/reports-guidance/general-counsel-memos

Here are precautions you can take as an employer to avoid running afoul of the NLRB or a crafty plaintiffs’ employment lawyer that sues you for your “illegal” handbook policies: Continue reading Employee Free Speech on Facebook