Make a Thoughtful Response to Employee Labor Activity

The ongoing worker shortage, with little to no end in sight as of the end of 2021, is fueling a wave of employee and labor union activism. Indeed, the month of October 2021 has been labeled “Striketober” by many, with strikes continuing into December as union members reject contracts proposed by their leaders.

Labor unions are relishing the moment and the potential for an increase in membership and power, with one labor leader commenting that his union (the Teamsters) expects that more strikes are likely. If you are a smaller operation and (as a reader of this magazine) not in transportation or logistics, you might think you have nothing to fear from this increased activism, but in December, Starbucks, for the first time in its 50-year history, lost a union election at one of its locations.

Unfortunately, it is not only employees and unions that are becoming more active. The federal government, in response to President Biden’s campaign promise to be the “most pro-union president ever,” has gotten into the game as well. In a throwback to the Obama administration, not only are we seeing more pro-union initiatives, but there is also a forthcoming and coordinated, multiagency effort to enhance the rights of whistleblowers.

While most (shouldn’t that be everyone?) would agree that whistleblowers bringing forward legitimate concerns regarding legal compliance should be protected from unlawful retaliation, this means that you as a business owner and/or manager need to be extra vigilant in recognizing when an employee is a whistleblower and when an employment action (or inaction) might be considered retaliation.

In this context, although the focus of the messaging is on “whistleblowers,” in fact, the federal government’s efforts are directed at all employees who engage in federally protected activity. Thus, while you might think of a whistleblower as someone who complains about workplace safety or issues of food safety, federally protected rights also include things such as complaining about the failure to pay correct wages or about inappropriate jokes of a sexual or other nature, advocating for higher wages (when done with others or on behalf of others) or advocating for collective bargaining rights.

It is not all that long ago that employees of franchise businesses, such as BURGER KING and McDonald’s, were

by Douglas H. Duerr

walking off the job and picketing for $15-an-hour wages. A significant number of business owners learned the hard way that some responses to that activity (e.g., terminating employment, warning against such disruptive conduct or prohibiting off-duty employees from soliciting customers to join their effort to improve wages) can result in significant monetary liability (as well as an order to reinstate employees to their former positions).

Thus, because of increased union activism and renewed focus by the federal government on the rights of whistleblowers, here are a few common points of potential exposure: 1. If employees are circulating a petition to change the conditions of the workplace, such as wages, standby/on call, permissible attire and so forth, that is a form of protected, concerted activity. That means you should not act against the instigators (or signers) of the petition and should tread carefully in the types of things you say or ask those employees so that you do not accidentally create liability. 2. If instead of a petition, employees communicate with customers about their workplace grievances (e.g., low pay, unfair work hours, etc.), whether that communication is by picketing outside your business or directly speaking with them, this too can be protected activity, although not always. Make sure your supervisors and managers know when they can intervene and when they cannot. 3. If an employee raises a workplace safety complaint, whether internally or to a governmental agency, even if the employee is wrong, the conduct is likely protected. Thus, be cautious before taking an adverse employment action against an employee for raising such concerns, and, if you are contacted by a governmental agency about an anonymous safety complaint, resist the temptation to figure out who the complainant is. 4. Complaints\questions about whether work time has been correctly recorded and paid, pay checks are on time and the like are also generally protected from retaliation. 5. Complaints of sexual (or other unlawful) harassment, whether by co-workers or customers, can often result in anger against the complainant, particularly from the supervisor or co-worker accused of the conduct. Most everyone should know that retaliation is unlawful in this situation, but, sometimes, the alleged harasser will approach the complainant, apologize and then tell the complainant that s/he should have come to them first on the issue. Is that retaliation? It certainly can be as the complainant is essentially being chastised for having utilized the complaint procedure.

While I could continue with other obvious and perhaps less obvious instances when employee conduct could give rise to a right to protection against adverse consequences from their employer, use these examples of when employers have responded unlawfully to employee action to serve as a helpful guide.

You should make sure that your supervisors and managers are sensitive to this issue. If confronted with protected activity, they should take a moment to reflect on whether the conduct might be protected and seek guidance on how best to respond before taking an action that could result in liability.

DOUGLAS H. DUERR is a partner at Elarbee Thompson, a national labor and employment law firm with an industry practice area focused on franchisees. Learn more at www.elarbeethompson.com.