December 5 Tip of the Week
“What Constitutes Protected Collective Activity”
To quote “Law and Order” – “ripped from the headlines” – important information can be found in today’s news regarding union activity and the response of large, multi-national employers and state and federal enforcement agencies to those collective actions by employees. The rules are relatively clear about what an employer can and cannot do when faced with an organizing effort by a labor union: the employer cannot make promises or threats to employees regarding their desire to join a union, nor can they engage in surveillance or any activity that is intended to intimidate any employee involved in the union organizing campaign. Starbucks, throughout the efforts to unionize its various locations, has been the subject of a number of lawsuits and complaints to the National Labor Relations Board regarding its response to unionization and the claim that they have violated those rules.
Today’s New York Times, however, highlights a different aspect of union activity and that is its collective nature. In an article regarding upheaval at Elon Musk’s Space X company, the Times noted that a number of employees were fired when they sent an open letter to company officials criticizing Elon Musk and his tactics. See, Space X Employees Say They Were Fired For Speaking Up About Elon Musk, https://www.nytimes.com/2022/11/17/business/spacex-workers-elon-musk.html. The letter was a response to Twitter activity by Musk regarding the settlement of a sexual harassment claim made against him. The employees viewed Musk’s response as disrespectful and highlighted the culture at Space X which the employees felt appeared to condone harassment and discriminatory conduct. The Times reported that Musk was very wary of unionization and that all of the managers at Space X were required to undergo training on how to discourage union activity. Despite this training, the company may have terminated these individuals in violation of their rights under the National Labor Relations Act.
The employee letter in question was shared on an internal communication channel that could be viewed by all members of the company and on employees’ personal email channels. When the letter was initially shared, it was viewed by 1,000 employees and an additional 400 or so employees signed onto the letter or otherwise indicated agreement with its content. Other employees complained about the use of the company’s internal communications for such distracting activity. The company’s president and chief operating officer instructed employees to “stop flooding employee communication channels immediately” and went on to say that a failure to comply with that directive would be viewed as insubordination. The open letter found its way into media channels and was made public shortly thereafter. Ultimately, nine employees who were involved in the letter were fired. The nine employees who were fired have filed a complaint against Musk and Space X with the National Labor Relations Board alleging that they were fired for engaging in collective activity in violation of the law.
Beyond the fact that this case involves Elon Musk, a public figure who has been involved in many high-profile business dealings, there is a lesson to be learned from this situation. Employers must understand what is protected collective activity under the law. There are cases where the National Labor Relations Board has found that employees using company email to air their concerns or grievances about the company, a company policy, etc. is protected activity under the law. The Board will protect this activity as long as it occurs outside of work time. Employers need to be aware of this rule because an attempt to quash employee collective activity using company email can be a violation of the law and may result in fines and other penalties. How can myHRcounsel help? Before you react to a problematic situation, reach out to us for guidance and a complete understanding of your obligations and limitations under the law.