New scrutiny means gripes may be ‘protected activity’

A group of staffers at a Florida law firm showed up at the office all sporting orange shirts.

Management wondered what it meant. The firm’s top brass didn’t spend a lot of time pondering the point, they just fired the ensemble.

So far, so good. Florida is an at-will employment state, and the firm did not have to justify its decision so long as they did not violate anti-bias laws

So they thought. When questioned about their action, firm managers said they knew the sartorial solidarity must be meant as some kind of complaint about working conditions.

That was a significant misstep.

Once firm managers perceived the “concerted action” of wearing orange shirts as a statement about the terms and conditions of employment, the employees came under the protection of the National Labor Relations Act. Initially seeing their shirts as priming the pump for a payday happy hour after work, the staffers decided they did in fact have complaints, when they talked to a plaintiffs’ lawyer.

This case says something about both sides, according to Norfolk lawyer Burt H. Whitt, who represents employers. “Sometimes lawyers know just enough about the law to get themselves into trouble.” Whitt offered advice for lawyers as employers at Virginia CLE’s 22nd Annual Employment Law Update in Richmond on May 9.

Lawyers – and support staff – know what kind of headache they can be by filing an employment charge or suit. On the flip side, the lawyers who hire and fire may not realize the full extent of protection available to the firm’s rank-and-file.

There are problems when lawyers sue lawyers, said Norfolk lawyer John M. Bredehoft, and it’s not just the exposure that comes from a demand for damages. “The disclosure of dirty laundry in these cases is amazing,” Bredehoft said, and he had the salacious details to prove the point.

Defense lawyers know they don’t want their employer clients in front of a jury defending the “stupid, controlling things” they may have done, according to Whitt. That distaste is even stronger when it comes to a law firm employer.

Nearly every juror, or their family member, has had a jerk as a boss. “There’s even less sympathy for a lawyer who has been a boss. Everybody assumes that because they’re lawyers, they should know better,” Whitt said.

Broad protection for non-union workers

Richmond lawyer Lynn F. Jacob picked up the theme of lawyers and their clients being surprised by the scope of regulation under the federal NLRA.

With the decline in union membership – it stood at 6.6 percent of the workforce nationwide in 2012 – the National Labor Relations Board doesn’t have a whole lot to do these days, Jacob said.

But the NLRA still gives employees the right to organize and act collectively to affect their working conditions, even without engaging in a formal union-organizing campaign.

“You don’t have to be in a union, and that’s where the NLRB is focusing. The NLRA applies to all non-governmental employees, no matter what size, and it protects employees, but not supervisors,” Jacob said.

The NLRB is “very political” and its rulings and their review by courts can create volatility for law firms and other employers.

Think of the May 7 decision striking the familiar employee rights posters that already grace worksite lunchrooms across the land.

Federal courts are split on whether the NLRB has the authority to order placement of the posters. The D.C. Circuit Court of Appeals struck the NLRB ruling that requires nearly 6 million employers to post the “Notification of Employee Rights under the National Labor Relations Act,” citing First Amendment and statutory grounds.

There is still a challenge pending in the 4th Circuit, Jacob said, but employers may want to “get the posters down now.”

The current NLRB is viewing “concerted activity” under the NLRA “very expansively,” Jacob said. One employee complaining about pay raises may be sufficient to be concerted activity. Watch out for complaints to company clients too. He cited nursing home employees who have complained to patients’ families, or to newspapers, about staff shortages that affect patient care.

Employee handbooks can pose particular problems. Consider the commonplace inclusion of a confidentiality provision meant to protect the employer’s proprietary information. That may be a per se violation of Section 7 of the NLRA, Richmond lawyer David E. Nagle advised.

“Overbroad confidentiality clauses are very common,” and they may raise an issue about restricting employees from talking about their earnings, Nagle said.

It’s better for the handbook not to state a blanket rule on confidentiality, but to spell out what should be kept confidential, and why, Nagle said. Employees have successfully challenged restrictions on discussions of wages with coworkers and office business with family and friends. In recent years, the agency has put a spotlight on discussions on social media sites such as Facebook, and afforded employees fairly wide latitude to air their gripes.

Other employee complaints the NLRB has been willing to entertain include challenges to rules that prohibit discussion about application of sick leave policies, anti-fraternization rules, no-profanity rules, disparagement and disloyalty clauses and rules against being on company premises when not scheduled to work.

He and Jacob offered these tips to avoid NLRA violations: