Question: One of our customer service employees recently contacted a customer to enlist support for higher pay for themselves and coworkers. Can we discipline or terminate them for this conduct?
Answer: Probably not. You cannot terminate a nonmanagement employee for engaging in a protected “concerted” (group) activity under Section 7 of the National Labor Relations Act (NLRA). This type of protected activity can include social media posts and any other communication that might be directed at (or on behalf of) other workers. Section 7 guarantees employees the right to communicate about terms and conditions of employment for their mutual aid or protection. With very limited exceptions, employers cannot interfere in any way with an employee’s exercise of their Section 7 rights or punish an employee for engaging in a protected activity under Section 7.
Communications between workers about pay are clearly protected, but you may be surprised to learn those protections can also apply when employees solicit help from third parties. The Board recently ruled that an employer violated the NLRA when it discharged an employee who contacted a customer via LinkedIn to enlist support for better pay and working conditions for herself and her coworkers. The employee raised concerns about the production rate at which she and other employees were to be paid after completing their training. In addition, she directly complained to company officials about unsafe working conditions for employees. The Board concluded that the employee engaged in protected concerted activity by sending the LinkedIn message to her employer’s customer because she was speaking on behalf of herself and coworkers (not just making a personal complaint) to improve their wages and working conditions. The Board also determined that the company knew about the LinkedIn message when it decided to fire her and that it was the motivating factor for the discharge (Capstone Logistics LLC, NLRB, August 2023).
Contact your Vigilant Law Group employment attorney before firing or taking disciplinary action against an employee for insubordination, disruptive behavior, criticizing pay or policies, or similar conduct that may be protected under the NLRA.
