The U.S. Fifth Circuit Court of Appeals recently confirmed that an employee’s complaints to an important customer about wages and working conditions for herself and her coworkers were protected under the National Labor Relations Act (NLRA). After she was fired, the National Labor Relations Board ruled that her comments to the customer both on LinkedIn and in person were protected. (See our previous newsletter article on the Board’s decision.) The employer appealed the Board’s decision to the Fifth Circuit, which said although there was insufficient evidence that the Vice President who fired the employee knew of her LinkedIn post, he was fully aware of the in-person meeting. The Vice President testified that he decided to fire the employee after learning of the conversation in which the employee raised group employment complaints about safety and employee compensation with the client’s distribution director during a meeting. The employee was told she was being fired for causing a “disruption of business.”
NLRA Protects Employee Rights to Raise Workplace Concerns, Unionized or Not
Section 7 of the NLRA guarantees most nonmanagement employees’ right to band together to raise concerns about the terms and conditions of their employment. This applies to all workplaces regardless of whether the workforce is unionized. Both the Board (and now the Fifth Circuit) ruled in the worker’s favor, finding that the group complaints to a customer about wages and working conditions were protected under the NLRA (Capstone Logistics, L.L.C. v. NLRB, 5th Cir, Nov. 2024).
Tips: It’s understandable that this company didn’t want its employees to share frustrations about internal company practices with the client, who found the conversations annoying and uncomfortable. However, this case highlights the importance of seeking legal advice to determine whether a complaint to a customer, or others, is protected before making any discipline or termination decisions. It’s also worth noting that the Fifth Circuit is considered to be a conservative-leaning circuit, so the fact that it sided with the Board and ruled in the worker’s favor indicates that employers can rely on this analysis for the long haul.
Even if a complaint is protected and you can’t take disciplinary action, though, it’s worth exploring practical avenues to redirect employee concerns to proper internal channels. Listening to employees’ feedback and making sincere efforts to address or at least respond to their concerns goes a long way toward presenting a unified approach in working with clients. Vigilant members, contact your Vigilant Law Group employment attorney if you have questions.
If this is the kind of counsel you’re looking for, explore how Vigilant membership can provide ongoing support for managing complex employment challenges.
