National Labor Relations Board Holds Preemptive Termination Unlawful

In this article, we continue our analysis of Protected Concerted Activity in Non-Union Workplaces.

In a case before the National Labor Relations Board (NLRB), the employer was a multinational, life sciences consulting firm that conducted clinical trials on behalf of its pharmaceutical clients at its Baltimore, Maryland location.  Its staff included a number of individuals from South Africa.

When the charging party, Theresa, a licensed practical nurse for the company, received information from a co-worker that led her to believe that the employees from South Africa were receiving special treatment, she complained to her direct supervisor.  The next day, Theresa was called into the office by a Human Resources official and the Manager of Clinical Operations, who is also from South Africa, to discuss the “rumor” she had mentioned.

In the meeting, Theresa explained that a co-worker, who was South African, told her that he received a raise when he was re-hired by the company and that his wife would also receive a raise when she was re-hired.  Theresa expressed concern that the company was paying the employees from South Africa higher wages and the manager of clinical operations would continue favoring these employees.  Theresa was then asked if she had discussed the conversation she had with her co-worker with anyone else besides her supervisor.  Theresa said she had not.  The next week, Theresa was fired.

Theresa filed a charge about her termination with the NLRB’s Regional Office in Baltimore. After an investigation, a Complaint issued and a hearing was held on the matter. The judge’s decision was reviewed by the Board in Washington, D.C., which found the termination unlawful, as the evidence indicated the company fired Theresa as a way to prevent her from discussing her concerns of favoritism with her co-workers.

The Board held that a “pre-emptive” termination to keep an employee from discussing wages, hours, or working conditions with other employees is unlawful, even if the employee had not yet engaged in protected activity. As part of its decision, the Board ordered that Theresa be reinstated with full backpay.

The employer appealed the Board decision to the U.S. Court of Appeals for the District of Columbia, which appointed a mediator to the case.  With the mediator’s help, the parties reached a settlement under which the employer agreed not to discharge employees to prevent them from engaging in protected concerted activities and to pay Theresa around $250,000 for back wages and medical expenses.  In the agreement, Theresa declined reinstatement.

Takeaway: It is imperative that employers ensure their termination policies are in compliance with all applicable laws.

Contact the experienced employment and labor attorneys at Luchansky Law today to ensure your company’s termination policies are in compliance with the National Labor Relations Act and other applicable laws.

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