Labor Law Protects Non-Union Employees: Employers Cannot Restrict Talk About Wages or Complaints with Customers or Co-workers
By: RICHARD A. ROSS
May 1997
As reported in previous Focus articles, employers should be aware that the National Labor Relations Act (NLRA) protects employees in certain circumstances even when no union represents or is seeking to represent them. (See: Salting in the Workplace, Winter 1996 issue; Non-Union Employees Reinstated by the NLRB, Fall 1995 issue.) In a recent decision, the United States Court of Appeals for the Eighth Circuit (which includes Minnesota) upheld a National Labor Relations Board (Board) determination that an employer's policy prohibiting employees from discussing or complaining about work-related problems with customers or clients is unlawful. Handicabs, Inc. v. NLRB, 95 F.3d 681 (8th Cir. 1996).
Handicabs, Inc., a Minnesota company that provides transportation services for disabled and elderly persons in the Twin Cities area, maintained a policy prohibiting employees from "discussing complaints or problems about the company with [its] clients." Employees who violated the policy were subject to immediate discharge. The rationale for the policy was that Handicabs' clients were protected by Minnesota's Vulnerable Adults Act. The company did not want its employees putting its clients in a threatening or uncomfortable position by discussing any personal or company-related problems such that the clients might feel coerced or obligated to act upon or react to those problems. Handicabs also had a policy against employees discussing their wages among themselves.
Claudia Fuglie, a Handicabs employee as well as paying client of Handicabs, complaint that another employee was talking about work-related problems and the "union." Ms. Fuglie, who suffers from spina bifida, is wheelchair-bound and dependent on Handicabs service. She complaint that the talk of unionization and possible work stoppage was distressing to her. As a result of the complaint, the offending employee was terminated.
The Board found both of Handicabs' policies to be in violation of the NLRA. (The Board has for many years prohibited policies that forbid any discussion among employees regarding wages). Handicabs did not contact that finding on appeal.
However, the company vigorously protected the finding against the policy intended to protect its clients. Handicabs relied on both the Vulnerable Adults Act as well as the Americans With Disabilities Act, claiming that its policy was intended to protect disabled and vulnerable individuals; therefore, it should be permitted to have a restrictive policy.
The Board held that its enforcement would prevent employees from lawfully trying to enlist the clients' support for protected activity under the NLRA. While the Board recognized that some restrictions might be lawful, the policy as written and applied was too broad. The Eighth Circuit Court of Appeals agreed with the Board and enforced its Order.
Previously, the United States Court of Appeals for the District of Columbia had reached a different conclusion regarding a policy restricting employee's discussion of work-related problems in the presence of clients or patients. In Aroostook County Regional Ophthalmology Center, 81 F.3d 209 (D.C. Cir. 1996), the Center, like Handicabs, had a written policy prohibiting employees from discussing work-related problems with patients.
Four employees at the Center were complaining, in front of patients, about their dissatisfaction and exasperation over the inconvenience caused by a work schedule change. The next day, the medical director met with the four employees, criticized their behavior over the prior year and recounted what he had been told about their actions the prior day. He terminated all four. Two employees filed unfair labor practice charges with the Board against the Center. The Board, as in Handicabs, Inc., found that the center's policy was overly broad and violated employees' rights under the NLRA to discuss work-related problems with clients or patients.
The District of Columbia Court of Appeals disagreed with the Board and the Eighth Circuit Court of Appeals. In this case, the District of Columbia Court of Appeals held that in a small medical office it was inherently bad conduct for medical staff to complain about their jobs while tending patients, since it would likely upset the patients. The Court held that:
Such grousing in the presence of patients is plainly inconsistent with the reasonable demands of caretaking, and, therefore, it cannot constitute protected activity. Id. at 214. (Citations omitted).
Because Minnesota employers are covered by the Eighth Circuit Court of Appeals ruling in Handicabs, Inc., employers here will not be able to rely on the Aroostook decision. Accordingly, employers should be extremely cautious in adopting any policies or disciplining employees who discuss or complain about work-related problems to clients or customers. Employers should not adopt such a policy or discipline an employee for making these kinds of remarks unless it is very limited in its application and does not inhibit the employee's protected rights under the NLRA. Before adopting any policies or disciplining employees for discussing or complaining to customers or clients about work-related problems, we recommend that you consult with legal counsel.