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First Circuit Upholds Employee's Right to Publicly Complain About Working Conditions

    Client Alerts
  • June 25, 2021

Section 7 of the National Labor Relations Act protects the rights of employees to engage in “concerted activity,” regardless of whether they are members of a union. Concerted activity means two or more employees working together to raise issues with regard to terms and conditions of employment. Earlier this month, the First Circuit Court of Appeals broadly interpreted an employee’s Section 7 rights following her termination for writing a letter to a local newspaper.

In NLRB v. Maine Coast Regional Health Facilities, a non-unionized nurse was fired after writing the letter that complained about understaffing at her medical facility. The employer terminated her for violating its media policy, claiming that the letter contained false and disparaging statements about hospital management and patient safety. She complained to the National Labor Relations Board, and the board determined that she had been terminated in violation of Section 7.

The First Circuit upheld the NLRB’s determination. It rejected the hospital’s position that the plaintiff wrote the letter on her own behalf, and therefore this action lacked the concerted element necessary for legal protection. The court noted that the employee’s complaints over hospital staffing issues were in furtherance of a well-known dispute involving multiple employees. Next, the First Circuit concluded that the false or defamatory content of the letter did not strip the employee of her Section 7 protections. The statements were directly related to the staffing concerns raised by the employee and were not so abusive as to remove them from Section 7’s scope.

This case demonstrates that both the NLRB and federal courts broadly interpret Section 7 to give employees wide latitude to raise public concerns about their workplaces. The fact that the statements embarrass the employer, demonstrate disloyalty, or even misstate the facts of the situation will not remove these legal protections. Employers that retaliate against employees for making such statements risk legal claims and their attendant costs.