It turns out the story of the Florida law firm employees fired for wearing orange is NOT over. (For those not up to speed, see my post from March 20, 2012.) At a recent legal seminar on the National Labor Relations Act (NLRA), I learned that the orange clad crew has filed a complaint with the National Labor Relations Board alleging that their employer fired them in interference with their rights to engage in “concerted activity.”
According to ABC News, eight of the fired workers have joined in the complaint. Say what? Weren’t the workers wearing orange to stand out in a bar they planned to go to the afternoon they were fired. Yep.
How is that “concerted activity” worthy of legal protection? Let’s start from the beginning: what is “concerted activity?” According to the NLRA, it is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. This could be almost anything, right? Right. That is what is so scary about the NLRA. Everyone thinks it is just about unions. Internet and news publicity are making employees more aware of this otherwise almost extinct area of law.
Now the NLRA is being used for all kinds of claims when a union is not even involved because it protects what is considered pre-union activity. If an employee complains about their pay, working conditions, or their supervisor to another employee, that is protected under the NLRA. Employers need to be on the look out for these issues.
In a statement to the American Bar Association Journal by the law firm in the orange shirt case, the employees were fired for using the shirts as a small part of a concerted plan to “harass, bully and intimidate the new office manager into quitting.” Ooops. This sounds an awful lot like concerted activity. Good luck to the law firm. It should have followed my advice and just kept it’s mouth shut about why it let the employees go.
Bonus Points: For those of you paying attention closely, you might have noticed that the employees said they were dressed in orange to stand out in a bar and that it was actually the law firm that said the employees were engaged in something that sounds like concerted activity. How could their be a claim if the employee’s stated reason is not concerted activity? According to the NLRB, if the employer believes the employees were engaged in a concerted activity and uses that as a basis for termination, it can be a violation regardless of what the employees intentions were. Scary