Workers’ ‘right to complain’ is expanded by the U.S. government

Recently, a car salesman in Arizona met with the owner of the dealership and a couple of managers to complain about his wages, commissions and break times. During the discussion, the owner became frustrated and told the salesman that if he didn’t like things the way they were, he was free to seek employment elsewhere.

The salesman flew off the handle, and unleashed a torrent of obscenities at his boss. Not surprisingly, he was fired.

End of story, right? Not quite. Even though the salesman didn’t belong to a union, he complained to the National Labor Relations Board. And the Board decided that he had been wrongfully fired, and ordered the dealership to reinstate him with full back pay.

How could this be?

Under federal law, all employees – regardless of whether they belong to a union – have a right to complain about their pay and working conditions, and to work individually and together to improve their situation. This sort of complaining and agitating is sometimes called “protected concerted activity.”

The National Labor Relations Board is the arm of the federal government that decides when employers have violated workers’ right to engage in this sort of activity, such as by retaliating against them. And in the last few years, the Board has become much friendlier to employees.

Although the car salesman’s case was unusual and extreme, the Board decided that his rant was “protected activity.” That’s because the meeting with his bosses had dealt specifically with wages and working conditions. The Board also said that the owner’s remark that the salesman was free to look for work elsewhere “provoked” his explosion, and that while the salesman was profane, he never actually threatened to harm anyone.

In a similar case in New York, an off-duty Starbucks barista came into his store with several co-workers to protest a regional manager’s policy against baristas wearing pro-union pins. This set off some friction with the off-duty manager of a different Starbucks location who happened to be in the store having some coffee. Profanity ensued, and the barista ultimately threatened the visiting manager.

The barista was fired two weeks later for cursing in front of customers. His termination papers, however, noted that he was a strong union supporter.

The Board decided that, based on the worker’s termination papers, his support for the union must have played some role in his firing. It said that Starbucks couldn’t prove that it would have fired him anyway even if he wasn’t pro-union, and it ordered him reinstated with back pay.

Still another case involved a Nevada hospital employee who quarreled with a hospital cashier. He was suspended after he allegedly threatened to “take care of” her.

The worker was told not to contact any employees while he was out. He ignored this, and obtained statements from co-workers attesting to his character and circulated a petition citing the cashier’s allegedly disrespectful behavior toward other employees.

When he returned from leave, he submitted the petition to a supervisor asking to have the cashier fired. He was fired instead.

But the Board sided with the employee. It said that since a lot of other employees apparently had real or perceived problems with the cashier’s attitude, and since her attitude affected their working conditions, the employee’s petitions amounted to “protected concerted activity.”

Finally, the Board recently decided that a Georgia company violated its workers’ right to complain after it instituted a “no gossip” policy that prohibited workers from talking about co-workers’ personal life outside their presence; talking about their professional life without their supervisor present, or spreading rumors about them.

The company fired an employee for “gossiping” after she discussed a colleague’s firing with some of her co-workers.

But the Board sided with the employee, saying a company doesn’t have the right to prohibit employees from discussing legitimate workplace concerns with one another.

Of course, none of this means that it’s generally okay for workers to swear at their bosses or threaten their co-workers. It’s obviously not. But in a small number of cases involving genuine disputes over workplace issues and conditions, the government is giving an awful lot of leeway to employees to exercise their right to complain.

If you have any questions about how this trend might affect you, we’d be happy to discuss it.

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