Thursday, March 20, 2014

A Bad Attitude Policy and the NLRB

Most companies will terminate an employee for a lousy attitude that has tangible effects with co-workers and customers.  Sometimes that prohibition is expressed in an employment policy, most times it is not.  A recent NLRB decision dealing with the former situation should provide some solace to employers who seek to discipline employees that would rather be working somewhere else and don’t care who knows it.

The case concerned a restaurant that had a rule in its employee manual that prohibited insubordination or lack of respect and cooperation with fellow employees or guests, including “displaying a negative attitude that is disruptive” to staff and customers.  For some reason, the general counsel of the NLRB took the position that the rule clearly encompassed an area of protected concerted activity, in that employees would assume that the rule would prohibit them from being critical of the employer, which would inhibit the employees from raising controversial topics, including terms and conditions of employment.  Fortunately, the majority of the Board (in this case, the two Republican appointees) determined in fact that the relevant policy language limits the policy to unprotected conduct that would interfere with the legitimate business concerns of the restaurant.  In this case, "unprotected conduct" meaning being a butthead, specifically using an obscenity in front of the restaurant patrons, a "fit of pique [that] wasn’t part of the service that guests reasonably would expect".

The NLRB has been on the warpath against employment policies lately, taking a position that I can best express as, “if there is any possible way that a provision could be interpreted in a way that violates federal labor law, then the policy is illegal and must be voided.”  Fortunately, there are some more rational heads on the Board, and they prevailed in this case.

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