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National Labor Relations Board Affirms Employee's Right to Complain at Team Building Lunch

    Client Alerts
  • June 07, 2019

When employers establish internal forums for employee comments, they may not anticipate that employees will use this as an opportunity to criticize the company and management. Employers also may not realize that such communications can be protected under federal labor law. Last month, the National Labor Relations Board upheld an employee’s right to criticize workloads and executive compensation during a lunch originally intended for team building purposes.                           

In MCPc Inc., an employee complained at the lunch about heavy workloads for engineers and stated that additional engineering help could have been obtained instead of hiring a new executive at $400,000 per year. Subsequently, the employer initiated an investigation as to how the employee learned of the new executive’s salary level. The company eventually terminated him based on his access to salary information on the company’s computer system and his alleged dishonesty when queried about the salary information.

In response, the employee filed a claim under Section 8(a)(1) of the National Labor Relations Act, contending that his comments were protected concerted activity. The NLRB agreed, but on appeal, the Third Circuit Court of Appeals determined that the NLRB had applied the wrong test for determining the lawfulness of the discharge. On remand, the NLRB again affirmed the decision, noting that the employer only provided reasons for the discharge after the termination, and that the underlying confidentiality policy unlawfully prohibited discussion of salary information.

Employers should understand that if they establish internal forums for employee comments, they may not like what some employees have to say. However, this displeasure does not give the employer the ability to censor the forum or to take disciplinary action against the employee in the absence of truly abusive behavior.