Monday, February 29, 2016

Is an Employee Protected When Airing Their Personal Gripes?

Employers  know that the NLRB prohibits them from taking adverse action against their employees for engaging in “concerted activity” whether employees are unionized or not. But can it be considered concerted activity if it involves just one employee griping about being too busy? The Third Circuit recently ruled that even individual complaints can be protected under the law.  

MCPC, Inc. provides technology services, including the creation of complex telephone services for companies. It employs “solution architects” to design the technology and “delivery engineers” to implement the designs. During the period in question the company was short staffed and was requiring employees to function in both of those roles. During an impromptu lunch with his supervisor and two co-workers, employee Jason Galanter complained to his supervisor that he was being overworked by having to do the work of both a solution architect and a delivery engineer. That might have been fine except he followed those statements with the opinion that the company could go a long way to solving its staffing problem if it had hired engineers with the $400,000 salary that it was paying to its newly hired executive.

Galanter’s supervisor reported this remark to the company’s CEO who apparently became irritated with Galanter and directed that an investigation commence to determine if he violated the company’s confidentiality policy which included a prohibition on accessing and disclosing salary information. After an interview with employee Galanter who provided several different answers to the question of where and how he obtained the salary information of the newly hired executive, the company determined that he had access to executive salaries in conjunction with a project on which he was working, but Galanter was discharged nevertheless for breaching the company’s confidentiality policy and for lying during the disciplinary interiview (by providing several different answers to the question of how he obtained the information). 

Galanter filed a charge with the NLRB claiming that he was fired for engaging in concerted protected activity. The company claimed that Galater words and actions were not protected because his remarks were his individual gripes, and no evidence existed that he serving as a spokesperson for others when he made his remarks. The company noted that he also breached their confidentiality policy in disseminating salary information. The NLRB found in favor of the employee and ordered his reinstatement. The company sought review.

The 3rd Circuit Court of Appeals held that the NLRB has the authority to broadly construe “concerted activity” and has interpreted the term to cover not only the union and pre-union efforts of groups of employees seeking to protect their rights but also certain actions undertaken by individuals in the unionized and non-unionized workplace. The Act recognizes individual conduct as “concerted” both where “individual employees seek to initiate or to induce or to prepare for group action” and where “individual employees bring truly group complaints to the attention of management.” Because Galanter was speaking to his supervisor about engineers in general being overworked and his ideas about how to alleviate that situation, he was engaging in concerted protected activity.

The Court also upheld the finding by the NLRB that the company’s confidentiality policy is overbroad in that it prohibits employees from speaking about salaries. As the NLRB has said in the past, policies of this type have the effect of suppressing concerted protected activity and violate the Act.

Galanter is not in the clear yet. The 3rd Circuit remanded the case to the NLRB to determine whether in fact Galanter was discharged for being untruthful in the investigation, as that is not protected activity and can be a lawful reason for termination.