The latest from Work Matters
| Growth and evolution in the law on protected concerted activity |
| I started my legal career at the National Labor Relations Board, and I tried my first case there in 1981. We were prosecuting a transport company for terminating an employee for engaging in protected concerted activity. It is a violation of the National Labor Relations Act to fire or otherwise take adverse action against an employee who acts in concert with other employees to protest working conditions. But, is it a violation if the employer does so because it believes that the employee is about to engage in protected concerted activity but has not yet done so? On Jan. 28, the NLRB said, "Yes." Here are the facts from the board's opinion in Parexal International LLC and Theresa Neuschafer : An employee was unhappy because she believed a group of South African co-workers were receiving raises and she and her American coworkers were not. She was called into a meeting with human resources and operations and told that the company was concerned that she was spreading rumors that the South Africans were receiving better treatment and higher wages than other employees. She was asked if she told this to anyone else, and she said only to her supervisor. Six days later she was fired. The NLRB brought a complaint against the company, but the administrative law judge tossed it, because the employee had not yet joined together with co-workers. The board disagreed, holding by a 2-1 vote that " 'a pre-emptive strike to prevent her from engaging in activity protected by the Act' " is just as much a violation as terminating an employee who has already done so. The board went on to note that the critical issue is not what the employee did but rather the employer's intent behind what it did. The board thought the critical testimony was the employer's question about whether she had discussed her beliefs with her co-workers (the NLRA doesn't cover supervisors). The law grows, it evolves. I like that. |
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