Employees who file internal oral complaints, who distribute union handbills on someone else’s property or who walk out over pay issues, even when no union is involved, gained more protections in a series of recent decisions. Employers will need to be on the lookout for these tricky legal situations so that the ever broadening rights of their employees won’t be violated.
These are the developments that are of significant interest and the lessons to be learned:
Supreme Court holds that employees need not “file” a written complaint to be protected.
The Fair Labor Standards Act (“FLSA”) is the federal law that deals with minimum wage and overtime. The FLSA contains a provision that prohibits an employer from discharging or discriminating against an employee because the employee has “filed any complaint” under the FLSA. Over the years, some courts have held that this means that only formal written complaints were protected. Other courts have held that oral complaints made to the employer were also protected. In this case, an employee was discharged after making oral complaints to his company about the location of the time clocks. The Supreme Court had the chance to settle the conflict among the courts once and for all. The court held in a 6 to 2 decision that the intent of the law was to protect written and oral complaints and that an employee who is discharged for making an internal oral complaint under the FLSA is protected.
Kasten v. Saint – Gobain Performance Plastics Corp., __U.S.__, No. 09-834 (March 22, 2011)
Lesson: Employers take all complaints seriously, whether they are written, oral, formal or informal. Managers should not retaliate or express anger because an employee has made a complaint. And by all means, don’t take adverse action against the complainer for making the complaint. This applies not only to complaints about minimum wages and overtime but also to complaints about workplace harassment and other working conditions. It often makes good sense to allow employees to express their complaints, appropriately, as adults. In the long run, it’s likely better than forcing them to go to a lawyer, a court or a union to have their complaints heard.
Non-union employees who walk off the job and disrupt the work of 1,000 other employees are protected.
A strike is not just something that unions do. Even employees who are not represented by a union have the right to cease their work and walk off the job over wages, hours and working conditions, even if it affects production and the work of hundreds of other employees. In this case, the NLRB held that the 100 scaffolding contractor’s employees working at an oil refinery were protected when they complained to their employer about a change in their pay and then refused to work. The complaining employees first gathered at their work site to discuss their gripes with management. When they refused to go back to work, they were asked to go to the parking lot. The discussions continued, and then they were told to move to a vacant lot and, finally, to a public park. Each time the employees complied, and each time they refused their employer’s urging to “please come back to work.” Eventually, when they didn’t return to work, they were discharged for “job abandonment.” The complaining scaffolding company employees who refused to work were crucial to the operation of the entire refinery. Their walkout affected the work of about 1,000 other employees and contractors who were working there. All this happened in 2008, and it was not until March of this year that the NLRB held that this “strike” was legally protected under the NLRA and ordered the fired strikers to be reinstated with back pay plus interest.
The NLRB held that to constitute “job abandonment” (which under the law would not be protected) there must be “unequivocal evidence of an intent to permanently sever the employment relationship.” There was no evidence of that in this case.
Further, in deciding whether a walkout is legally protected, the NLRB said that it will balance the rights of the employees and the rights of the employer by considering these ten factors:
- The reason the employees stopped working;
- Whether the stoppage was peaceful;
- Whether the stoppage interfered with production or deprived the employer of the use of its property;
- Whether the employees had an adequate opportunity to present their grievances to management;
- Whether the employees were given a warning that they must leave the premises or face discharge;
- The duration of the work stoppage;
- Whether the employees were represented or had an established grievance procedure;
- Whether the employees remained on the premises beyond their shift;
- Whether the employees attempted to seize employer property; and
- The reason given for the discharge.
Atlantic Scaffolding Co., 356 NLRB No. 113 (March 18, 2011)
Lesson: Employees in the private sector do have the right to peacefully refuse to work. If employees do refuse to work and walk off the job, they can be “permanently replaced.” This means that they can be replaced – but not fired – for walking off the job over wages, hours or working conditions. But, if after walking they unconditionally offer to come back to work, then they have the right to resume their jobs if they haven’t yet been permanently replaced. Employers confronted with a walkout should consider these ten factors before taking any action. Front line management needs to know these rules. As this case demonstrates, if employees are fired for walking off the job, the possibility of having to reinstate them with back pay after years of litigation looms very large.
Employees have a right to distribute union handbills where they regularly work even when it’s on someone else’s property.
The NLRB, in a 3 to 1 decision, has established a new rule on the rights of employees to distribute union organizing handbills. In this case that had been pending since 1998, employees of several contractor-operated restaurants that were located inside the New York New York Casino in Las Vegas distributed union handbills to customers at the restaurant entrances and at the casino’s main entrance. The casino was the owner of the property and called the police to remove the hand billers as trespassers. This led to unfair labor practice charges and several trips through the NLRB and the courts. After over a decade of litigation, the bottom line is that the NLRB creates in this decision a new right of access to private property for employees of a contractor who are regularly employed on the private property of someone who is not their employer. The NLRB held that, although the casino was not the hand billers’ employer, it was still liable for violation of the contractor’s employee’s rights under the NLRA because the casino was the one that had them removed. The NLRB said that the only way the property owner may lawfully exclude the contractor’s employee hand billers is if the owner can prove that the activity “significantly interferes with its use of the property or where the exclusion is justified by other legitimate business reasons including the need to maintain production and discipline.” The NLRB did not provide any specific guidance as to just how far this new rule will lead. Instead, it left it up to future litigation, stating that “such determinations are best made on a case-by-case basis.”
New York New York Hotel & Casino, 356 NLRB No. 119 (March 25, 2011)
Lesson: This decision will have a big impact on any property owner that has contractors and their employees on site. Prior to this decision, most property owners generally believed that hand billing could be confined to public property if there was no “reasonable alternative means” to reach the subject audience. Now it appears that, before ejecting hand billers, a property owner must carefully determine if it can prove that the activity “significantly interferes” with its use of its property or can be justified by other “legitimate business reasons.” Predicting how the NLRB might rule in any particular case will be difficult, but given the trend, one might expect that the rights of property owners will give way to rights of employees – and unions. Unions may see this decision as an opportunity to test a property owner’s response in light of the new access rule. Property owners that have on site contractors should take a look at current access rules and policies to make sure they are not too restrictive. Furthermore, if hand billing does occur, it will be important to make sure that management has been well trained in dealing with this developing and tricky area of the law.
Should you have questions, please contact your regular Hall Render attorney or a member of our Employment and Labor Section.
