protected concerted activity

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.


Continue Reading You Be The “Judge”: Is Swearing at Work Protected by Federal Law?

Yesterday, The New York Times — about a gazillion years after this blog and other employment law blogs talked about it ad nauseum — wrote their definitive piece entitled on how “federal regulators” are “ordering employers to scale back policies that limit what employees can say online.”

The headline?  “Even If It Enrages Your Boss, Social Net Speech Is Protected.”

Are you scared yet? Hopefully not, because if you’ve been following this blog at all, you know that such pronouncements are misguided and overblown.

That’s not to say that you shouldn’t review your policies to make sure that they are appropriately tailored. And that’s not to say that you shouldn’t exercise caution before firing an employee who just said something about someone at work on Facebook. 

But, it is far past the time when we should treat each pronouncement or each article on social media as this huge development that requires employers to change everything time and again.

Social media — like the telephone, fax machine or e-mail before it — is now just another communications tool that is here to stay in one form or another.   If you don’t get it yet or look at those who use it with disdain, you’re simply missing out on a tool that can be useful to your employees and to you.   The one billion people who use Facebook aren’t suddenly going to wake up tomorrow and decide that its not useful.    

Let me give you a real-world example outside the workplace and how I’m convinced that social media is for everyone now.


Continue Reading The Last Post About Social Media & Employment Law Ever. (Maybe.) (Not Really.)

As another week passes by (seriously, where did January go already?), here are a few odds and ends that are worth a mention:

  • Earlier this month, new rules regarding limits on the use of mobile phones went into effet by the Federal Motor Carrier Safety Administration.   The rule covers “both, drivers of CMVs in interstate