A unanimous decision by a three-member panel of the National Labor Relations Board (“NLRB”) recently found a New York City restaurant to have violated the National Labor Relations Act (“NLRA” or the “Act”) when it fired four employees after each of them emailed a group of other restaurant employees and owners expressing their positions on various workplace complaints.
The case began when a former employee of Mexican Radio Corp., operator of several New York restaurants (and apparently unrelated to the 1983 song of the same name by one-hit wonder band “Wall of Voodoo”), sent an email to all of the restaurant’s current employees and owners that stated a lengthy list of complaints about the company’s wages, work schedules, tip policies, and management’s treatment of employees, including purportedly discriminatory practices. The email also specifically referenced government agencies to whom employees could complain and the legal protections for doing so. Four current employees responded with a “reply all” email to the entire group, expressing that they shared the same workplace concerns raised in the former employee’s email. Three of these employees discussed the original email among themselves before responding, and together decided they would each send a response to inform management they agreed with the stated concerns and felt others would too. The fourth employee did not discuss the original email with other employees, but sent a response agreeing with its contents, believing that she did so on behalf of other employees who shared the same workplace concerns. The substance of the response emails generally stated that the employees agreed with the concerns stated in the former employee’s original email, but added little to no additional substance to the complaints.
The day after the emails were sent, the owners met individually with each of the four employees to question them about the email responses they sent. At the conclusion of the first meeting, the employee was terminated for “insubordination” after she confirmed her belief that the concerns raised in the email were valid. In domino-like fashion, the remaining three employees each were told they were no longer welcome to work at the restaurant because of the concerns they held and expressed. The employer later attempted to assert the terminations were for other reasons, such as not showing up to work (despite one employee having been told by management not to come back, and another that they could take the day off). The NLRB panel determined theses reasons to be pretextual, and the true reason for each termination was the employee’s email response.
Given the content of the original email, and employees’ testimony that their email responses were made on behalf of themselves and other employees, the NLRB panel had little difficulty finding that their email responses were protected activity under Section 7 of the Act, which protects employees’ rights to act collectively to improve the terms and conditions of their employment and for mutual aid or protection. Mexican Radio argued that the original email contained profanity, and therefore the responses to the email lost protection under the Act. The Board, however, disagreed, finding the limited amount of profanity was not sufficient or egregious enough to lose protection under the Act. Because the terminations were plainly based on the employees’ email responses, the Board found the terminations violated Section 8(a)(1) of the Act, which prohibits employers from interfering, restraining, or coercing employees in the exercise of their rights under the Act.
Employee emails and social media posts complaining about workplace matters consistently rear their heads in the workplace, and this case is a reminder that no matter how lengthy, untrue, or otherwise unpleasant the electronic communications may appear to be, this alone may not cause employees to lose protection under the Act. Further, handling such electronic communications requires careful consideration and deftly-worded responses by employers to avoid any expressions that might be construed as a threat or disapproval of the employee’s rights to express such concerns. So, employers, a reminder, also from the mid-80s – “let’s be careful out there.”