Let’s try something a little new today: I’ll give you some facts and see if you can pick the result that a court or agency found. (Hat tip to Overlawyered for highlighting some of these issues.) I’ll give you the lesson learned from these cases at the end.
Used Car Salesman Loses Temper
1. Nick is hired in late August 2008 as a used car salesman (really). On the first day on the job, Nick worked in a tent sale and inquired about the bathroom facilities. The manager responded that it was in the store. The next week, when he asked if he could use the bathroom during tent sales, the manager responded “you’re always on break buddy … you just wait for customers all day”. He told Nick that he could leave if he did not like the employer’s policies. During the next tent sale, he asked other salespeople about the compensation policy. He also raised the issue of bathroom breaks as well.
At another tent sale (apparently, tent sales are very popular), Nick asked his manager about the commissions for a vehicle and thought the employer was stealing money from him in calculating his commissions. He then went to the state’s wage & hour agency to obtain more information about commission-based payments.
By October 2008, his manager met with Nick in private office saying that he had no intention of firing Nick but that he was “talking a lot of negative stuff” and asking too many questions. The manager also said that if Nick did not trust the employer, he didn’t need to work there. Nick then lost his temper calling the manager a “f–ing mother f–ing”, a “f—ing crook” and an “a–hole.” Nick also told the manager he was “stupid” and stood up, pushed his chair aside and told the manager that if he was fired, the manager would regret it.
Nick is then fired and brings a claim against his employer.
Will Nick win his claim?
a) No, yelling at his boss is “obscene and denigrating” and thus grounds to fire the employee, even if he did engage in some “protected” activity.
b) No, while he made threats against his boss, they were empty words and he did not engage in “protected” actvity anyways because mere discussions regarding compensation are not covered.
c) Yes, because Nick’s outburst was not menacing, physically aggressive or belligerent and he engaged in “protected” activity.
d) Yes, because the right to use a bathroom is protected under state law and Nick was right to be upset that his use was restricted.
Barista Makes A Fuss, Not Coffee
2. In 2004-2007, a union tried to organize four coffee chain stores in New York City. Joseph worked at one of the stores and became an open and active supporter of the union in 2005. In May 2005, Joseph asked his assistant manager to help him. The assistant manager was busy and said it would have to wait. When the assistant manager came over, Joseph said it was “about damn time”. He then noisily shoved a blender in a sink. He then said to the assistant manager that “this is bullsh–” and told her to “do everyone your own damn self”. The employer suspended the employee for several days and Joseph apologized for his outburst. He was also given a warning that he would be fired if this happened again, though Joseph said he never received it.
Later that fall, the store manager prohibited the employees from wearing union pins. One day, Joseph and some other employees, came to the store while off-duty to wear the pins. An off-duty assistant manager from another store approached Joseph to ask him about the union pin and he meant it in a confrontational manager. The conversation turned heated with an insult to the employee’s father being mentioned. Both men spoke loudly, used hand gestures and the employee said “You can go f–k yourself, if you want to f— me up, go ahead, I’m here.” Joseph’s friends got Joseph to withdraw and the on-duty assistant store manager admonished Joseph. Several weeks later, Joseph is fired. He is told in writing that he is ineligible for rehire because he “was insubordinate and threatened the store manager. [Joseph] strongly support [sic] the” union.
Joseph brings a claim under the National Labor Relations Act. Does he win his claim?
a) No, because the outburst was in a public venue, Joseph’s actions aren’t protected.
b) Yes, wearing a union pin entitles the employee to protection and he was off-duty when the actions occurred, so the employer couldn’t fire him anyways.
c) Yes, while the employee’s outburst makes him lose the protection of federal labor laws, the termination letter shows that his discharge was motivated in part by the prounion activities.
d) No, wearing a union pin was against the company rules and the company is entitled to set up reasonable restrictions in public venues.
Limo Driver’s “Message” In His Car
3. Pierre is a driver for a limousine company. In May 2010, his leased vehicle began to overheat. He gave it to the limo company, who took it to Johnny’s Auto Repair. Shortly thereafter, the owner of the repair shop telephone the limo company to tell them that the words “F*** All 3s” were carved into the dashboard panel of the vehicle. Pierre denied that he carved the obscentity and claimed that the obscentity was already there when he received his vehicle. The employer terminated the Pierre saying that regardless of whether he carved the obscenity “he had been driving with the statement in a visible spot for over a month where our customers could see it”.
Pierre files suit claiming race discrimination. He argues that his boss called him a “black bastard” as he ended his contract and referred to Pierre as a “black motherf—-” immediately after termination.
Employer files a motion for summary judgment. Who will win that motion?
a) The employee. His allegations that the manager called him racially motivated names is enough to show racial animus in his termination.
b) The employee. While the employer had enough to show that it acted for a legitimate non-discriminatory reason, the comments created a “mixed-motive” that should be decided by a jury to determine if race played a role in the termination.
c) The employer. The employee didn’t even show a prima facie case of race discrimination.
d) The employer. While the employee established a prima facie case of race discrimination, the employer articulated a legitimate non-discriminatory reason that isn’t pretextual, or a coverup for race discrimination. The employee hasn’t shown that white drivers were treated differently.
So, how did you do? The “answers”, at least as decided by the National Labor Relations Board and a federal court are:
1. C — See the case of Plaza Auto Center, decided by the NLRB late last month.
2. C — See the case of Starbucks Coffee Company, decided by the NLRB last week.
3. D — See the case of Youry v. Executive Transportation, Co., decided last fall by a District Court in Pennsylvania.
The lesson learned from these cases? The National Labor Relations Board continues its’ expansive view of what behavior should be allowed in the workplace. Courts remain less receptive.
No matter though. So much for the employment at will doctrine at the NLRB. And just remember: The next time your employee swears at you, you may need to consult with a lawyer before firing the employee on the spot. Good times.