As we all learned in school, the First Amendment to the U.S. Constitution prohibits Congress from making laws that “abridge the freedom of speech.” Employer-created rules and decisions are not acts of Congress, of course, and are not subject to the First Amendment. So, employers can terminate their at-will employees (all employees without an employment contract) for a good or even a bad reason, including having a bad attitude, right? Wrong, according to the National Labor Relations Board, at least when that bad attitude expresses itself in voicing concerns about their job.
In another example of the National Labor Relations Board (“the Board”) reaching into a non-union employer’s workplace, it ordered dance production companies that run two Las Vegas shows (Vegas! The Show and The BeatleShow) to reinstate several dancers whose employment was terminated for performance and attitude problems that spanned several years of time. David Saxe Prods., LLC, 364 NLRB No. 100 (Aug. 26, 2016). In a letter to one of these employees, the owner of the production companies stated:
Hi Anne, Due to your constant negative attitude and lackluster performance I will not be renewing your contract for Vegas The Show. Your contract ends January 2. I hope that you are professional enough to finish your contract and I would appreciate it of [sic] you could cease all of the complaining in the dressing room. Your fellow cast members would really appreciate it. Constant complaining and negativity just cant [sic] be tolerated anymore. Thank you for all of the good things you have done in the past. Call or email me any questions you might have. I tried to talk to you in person but you left last night. David Saxe
What the employer viewed as a “problematic” employee with a bad attitude, the Board viewed as an employee engaged in “protected concerted activity,” which is protected by the National Labor Relations Act, and who therefore had been unlawfully terminated. The Board found that this employee and others like her engaged in protected concerted activity when one of the dancers, together with other dancers, raised concerns about their working conditions. Specifically, the dancers voiced concerns about a lack of rehearsal pay and that the show’s schedule provided only limited preparation time between performances. The dancers had been expressing concerns like these for years. The owner decided enough was enough and did not renew their contracts for another year. The Board said that was unlawful and ordered reinstatement and back pay.
Most employers understand that an employee cannot legally be terminated for making a complaint of discrimination. However, as this case demonstrates, the Board can (and often will) find unlawful terminations based on virtually any complaint that touches on an employee’s working conditions. So, practically speaking, at least when it comes to expressing concerns about their job, the National Labor Relations Act — at least in the eyes of the current Board — offers something akin to “First Amendment rights” to employees for speech on a broad range of topics.
Surprised by this result? Surprised by how far the Board is seeking to assert itself into a non-Union workplace? Come learn more about this activity by the NLRB and other government bodies’ Expanding Agency Authority in Troutman Sanders LLP’s Annual Labor & Employment seminar on November 10, 2016 from 8:00am-2:00pm at the Crowne Plaza Hotel (located at 590 West Peachtree St., behind our offices in the Bank of America Building). Register for this FREE seminar by clicking here. Hope to see you there!