By Bill Wright
Here’s the story: Over the weekend, an employee sees a help-wanted ad and, because of the nature the business described and the location, concludes that her employer placed the ad. On Monday, she asks a co-worker whether he saw the ad and who he thinks is going to get fired. Maybe the employee was asking because she thought she was going to get fired – she had left work without an excuse the week before when the employer denied her vacation request. The requested vacation was to attend a cremation ceremony for her father and when the request was denied, she was just too upset to work. The employer issued her a final warning for her absence.
Maybe that’s why she asked the co-worker about who was going to get fired, but the co-worker thought she was insinuating that he was going to get fired. He went to the boss – both bosses – to ask whether he was getting fired. Each boss said, “No. Why do you ask?” The co-worker told them about the employee’s question. The employer then fired the employee because she was gossiping and spreading rumors.
Not every employer would have taken such drastic action. The co-worker must have been really upset by the question, or maybe the employer was on edge because it had just won a union campaign. But the National Labor Relations Board concluded that asking the question – who do you think will get fired? – was protected concerted activity and ordered the employee reinstated. After all, in the Board’s view, it was a conversation about job security. Sabo, Inc., 359 NLRB No. 36 (December 14, 2012).
The upshot of course is a caution to all employers – when an employee starts suggesting to co-workers that someone is going to get fired, making everyone upset and disrupting work, it might well be protected under the NLRA. This warning goes to all employers, whether they have a unionized workforce or not. The employer in this case did not have a union on the premises. Remember too, as we learned elsewhere in the Blog, reinstatement will come with a backpay award, grossed up for adverse tax consequences.