We’ve all heard of weird laws. For example, in California it is illegal to eat a frog that dies during a frog jumping contest. What many people do not realize is that there are a number of strange and non-intuitive laws that govern the workplace. Many companies (unknowingly) break these laws all the time. Today we are going to review 3 of the strangest laws that many employers (and employees) are not aware of.
1. Employees Can Curse Out Their Boss on Facebook Without Being Fired (Maybe)
Before you send out that Tweet or post that Facebook message about work you have to read this… While I don’t recommend it, an employee may be able to curse out their boss on Facebook (or on other social media platforms) without getting fired. Yes, it is true. However, your mileage may vary.
The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (otherwise known as protected concerted activity). It is illegal for a company to fire someone because they engage in protected concerted activity. Normally, this means employees cannot be fired for attempting to unionize a company by passing out leaflets, soliciting their coworkers, complaining about working conditions, and many other activities.
However, the NLRA also protects employees that use curse words like this phrase below in some instances (I altered the curse words):
Bob is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
The National Labor Relations Board found that this language was protected and Pier Sixty, the company, had violated the NLRA by terminating the employee for this language. There is a test to determine whether this language is protected. In this case, the two most important factors were that the company tolerated similar obscenities in the workplace and the statement was about workplace concerns and occurred in the context of alleged hostile actions by the company in the context of a union organizing campaign. While it was unlawful to fire an employee in this case for cursing out their boss, in many instances employers can lawfully terminate an employee that curse out a supervisor.
2. Companies Cannot Fire Employees for Sharing Their Salaries or Wages
Many workplaces still have rules that prohibit employees from discussing their wages with other employees. Supervisors may tell an employee that just got a raise to keep that information to themselves and not to share it with other employees because the supervisor does not want other employees to be upset that they did not get a raise. Well, that is clearly illegal.
The NLRA allows employees to discuss their salaries and prohibits employers from having policies that forbid employees from discussing their pay. This standard was recently confirmed in the Boeing decision (decided in December 2017), which established a new standard for evaluating whether workplace rules violate the NLRA. Workplace rules that prohibit salary discussions were specifically mentioned as an example of a clearly illegal rule.
Many businesses have legitimate reasons to pay employees differently: some employees have more experience, others work longer hours, some have the same job title but different responsibilities, and some may be more productive or just better employees (e.g. the top salesperson is usually easily identifiable and typically makes more than the worst salesperson). No company wants to explain to employees why they are paid differently. These conversations almost always create a sense of unfairness and lower morale. Companies also want to avoid defending their pay structure when an employee claims that the company is discriminating against people of a certain race or sex. It causes bad publicity even if the company can prove that it has legitimate and justifiable reasons for the wage differences.
3. Employees that Engage in Certain Protests or Strikes Are Protected from Termination
Employers cannot fire or otherwise retaliate against an employee for protesting or striking. One interesting case involves the “Day Without Immigrants” protests from last year. The protests involved immigrants boycotting businesses and striking to highlight how immigrants impact US businesses. It was also an effort to show the Trump administration the importance of the immigrant community as he began to take a tough stance on immigration. The case was settled, but not before the National Labor Relations Board (NLRB) Division of Advice issued an advice memo on the issue.
The NLRB found that EZ Industrial Solutions violated the National Labor Relations Act by threatening to suspend and then firing 18 employees because they participated in the “Day Without Immigrants” Protest. EZ Industrial Solutions terminated all 18 employees the day after the protest for not coming to work, insubordination (they had been told that they were needed at work), and sabotage.
The NLRB concluded that the employees’ participation in a Day Without Immigrants “was for their mutual aid or protection and constituted a protected strike.” The National Labor Relations Act protects employees that engage in activities to ‘“improve their lot as employees through channels outside the immediate employee-employer relationship” in addition to activities ‘“in support of employees of employers other than their own.”’ The protest in this case was protected because the employees were acting to protect other employees especially those that may have been undocumented.
The case provides some valuable insights to employers. Employers need to be aware that non-unionized employees can also strike or engage in work stoppages to protest their working conditions and pressure their employer to correct the object of their complaint.
Conclusion
These are just some of the weird and non-intuitive rules that employers must follow. For many companies, it is not the expected workplace obstacles that derail a company, but the unexpected challenges. The worst thing that an employer does in this kind of situation is to guess or “follow their gut.” Companies that do often find themselves in litigation.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.