Sixth Circuit: Despite Misconduct, Terminating Complaining Employee Still a Problem under Section Seven

Ask any school teacher and they will tell you, the key to maintaining an orderly classroom is identifying the instigator. The "instigator" is the young boy or girl (let’s be honest, usually boy) who does or says something to disrupt productivity and get everyone off-task. I often tell my clients that managing a workforce is similar to managing a group of adolescents. You must establish and enforce rules, know everyone's strengths and weaknesses, recognize personal conflicts, and — most importantly — identify the instigator. In a recent federal case, however, one employer learned the pitfalls of playing teacher: in the workplace, the instigator may be the one person that you don’t want to single out.

Handling "Instigators" Under Section Seven

Unlike school teachers, employers must proceed with caution and exercise extreme discretion when taking steps to control a rabble-rouser. That is because in the employment context, while the instigator may be the childish employee who pressures others to break the rules or engage in horseplay, they also might very well be the outspoken employee who is unhappy with their compensation and riles everyone up. And while federal law obviously does not grant employees the right to break the rules, it does give them the right to discuss terms and conditions of employment, including the right to lodge complaints and even criticize the way in which management is operating the business. For example, imagine a young student rallying the support of his fellow classmates to lodge a complaint about their teacher with the principal. While this seems insubordinate and grounds for discipline, it would be considered "protected concerted activity" by an employee under Section Seven of the National Labor Relations Act.

An employee's right to criticize their employer is not without limitations, though — the keys are whether the statement (a) addresses an issue or concern shared by more than one individual and (b) actually deals with terms and conditions of employment. (Thus, in the above example, the childish employee who pressures others simply to break the rules still would not be protected in the workplace.) It is also important to note that protected statements can take a variety of forms in the digital age. In recent years, the National Labor Relations Board has interpreted statements critical of an employer on Facebook to be protected concerted activity.

A Cautionary Tale

That brings us to the case at issue. As with any protected activity, employee statements or complaints about terms and conditions of employment must be on the employer's radar and evaluated before making any adverse employment decision — and a recent protected statement may infect a disciplinary decision based on a separate, nondiscriminatory basis.

In the Sixth Circuit case, called Inova Health System v. NLRB, the employee was terminated following an investigation of complaints made against her for vulgar language and intimidation. Around the same time as the complaints, though, the employee emailed her supervisor outlining several concerns shared by the staff relating to performance objectives and feedback. There was evidence that the supervisor who received the email was "furious" and subsequently provided negative statements against the employee during the investigation of the complaints.  Thus, the “instigator” in this case was the exact wrong person to go after for policy violations — the Sixth Circuit recently upheld the NLRB's finding that the termination decision was unlawfully motivated by the employee's complaint regarding terms and conditions of employment.

Could the employer have avoided this outcome by more carefully defining the reasons for termination (policy violations) and documenting that the staff complaints didn’t play a role? Maybe. Would it have been easy, given that this instigator was the primary voice of protected activity? Probably not.

…. So? What to do?

With the decline in union activity over the last several decades, the NLRB has stepped up its enforcement of the National Labor Relations Act (NLRA) against private sector employees. Furthermore, recent decisions by the NLRB indicate that an employee's right to criticize their employer shall extend to social media outlets such as Facebook and Twitter. In other words, employee protections are expanding under Section Seven of the NLRA. Employers need to exercise extreme caution whenever actual misconduct coincides with complaints regarding work conditions — in other words, when one kind of instigator (the truly bad seed) gets mixed up with the other (the complainer). The good news though? Tee-peeing your supervisor's house on homecoming still does not qualify as protected concerted activity. 

Questions? Contact your Hinshaw employment attorney.