October 16 Tip of the Week

“Words Matter…”

As all human resources professionals know, the amount of union activity that has been occurring over the last few years has significantly increased – first with the efforts to unionize Starbucks and Amazon workers and, now, with the strike activity in the auto industry and the healthcare industry.  It is not clear as to what has caused this increase in union activity – perhaps, it is the impact COVID and the changes that the virus has seemed to impose upon the employment relationship.  Or, it could be the response of workers to increased inflation and decreased spending power.  It could also be a more hospitable political environment for workers.  It is hard to say what is specifically causing this surge in unionization and union activity, but it is clear that this change has had a significant impact on employers. 

            A recent decision by a National Labor Relations Board judge in Los Angeles County held that the former CEO of Starbucks, Howard Schulz, violated the law when he told a barista that, if they didn’t like the way Starbucks was responding to the union organizing drive, they could “go work for another company.”  (Starbucks Corporation, 21-CA-294571 (October 6, 2023).  The comment was made during an “afternoon of coffee and collaboration” – a meeting held by Starbucks management with the stated purpose “to ‘plan for the future of Starbucks’ and for employees to share their ‘ideas and thought partnership’” with upper level management. 

During the course of this meeting, an employee raised her concerns regarding Starbucks’ response to the union organizing activities and the fact that Starbucks had been found to have engaged in unfair labor practices.  The employee stated that, although she appreciated and was committed to Starbucks’ stated mission and values, she felt that their activities in response to the union organizing drive was not true to that mission and those values.  In response to the employee’s concerns, Schultz made the comment that, basically, if she didn’t like it, she could go work somewhere else.  In finding that this comment violated the NLRB’s prohibition on threats, the Administrative Law Judge stated:  “An employer violates Section 8(a)(1) when, in response to their Section 7 activity, it invites employees to quit. Such invitations amount to implied threats of discharge because they suggest that engaging in protected concerted activities is incompatible with continued employment.” 

This decision is important for employers because it demonstrates that an offhand remark or a comment made out of frustration can create liability under the law.  That seems to be the case in this situation, where Schultz spoke during a meeting intended to make employees feel good about their association with Starbucks and reacted to comments from an employee that he did not appreciate.  In fact, the Administrative Law Judge characterized Schultz’s comment as an “angry reaction to their protected statements that, in their view, Starbucks was not living up to its stated mission and values, and that Respondent should stop committing unfair labor practices.”  Unfortunately, offhand remarks by employers when engaged in conflicts with employees not only cause problems before the NLRB; they can give rise to liability in other situations as well. 

For example, a previous Tip of the Week raised this issue while reviewing an employee’s lawsuit regarding interference with their FMLA rights.  Comments made by the employer in response to the employee’s request for FMLA leave were found to be evidence that the employer violated the employee’s rights under the act.  In addition, several years ago, the Equal Employment Opportunity Commission adopted a new approach to discrimination in the workplace.  Under this new approach, the EEOC has created a new training module entitled “Harassment Prevention and Respectful Workplaces Training.”  This training focuses on respectful conduct in the workplace and the need for coworkers to speak up when they see inappropriate or disrespectful conduct. In creating the type of respectful environment envisioned by the EEOC, an employer cannot engage in a give and take with employees during difficult conversations involving the employee’s performance, complaints about the workplace, or other work-related matters.  Offhand remarks and heated responses will be documented by employees and their attorneys and will provide the basis for a lawsuit that would not be viable without those remarks.   

The lesson of both of these approaches to employee communication for employers is to ensure that you do not place yourself or your supervisors in a position where they will engage in conversations with employees that devolve into conflict.  Words said in anger or as a reaction to an employee’s provocative behavior can result in a finding that the employer has unwittingly and unintentionally violated the law.  myHRcounsel can assist you in navigating these difficult employee encounters and help you to avoid liability.