Commentary & Opinion

COVID-19 and protected concerted activity

By Jon Hyman

Aug. 17, 2020

Let’s suppose you’re a health care organization that terminates an employee after the employee refuses to wear a shared isolation gown and after the employee starts a group discussion with co-workers about the risks and dangers of shared gowns.

If that employee files an unfair labor practice charge with the National Labor Relations Board alleging that the termination unlawfully violate his right to engage in protected concerted activity under Section 7 of the National Labor Relations Act, do you win or lose the case?
According to this recent Advice Memo [pdf] published by the NLRB, the employer wins and the employee loses.
Although Charging Party discussed the gown issue with Charging Party on March 30, 2020, prior to drafting letter to the Employer, there is no evidence that the object of the conversation was initiating or inducing or preparing for group action in the interest of employees, as opposed to simply discussing that the nurses now had to share gowns. Further, Charging Party letter is solely focused on personal disgust at the notion of sharing gowns and fear for own and family’s safety, which believed to be at risk. …
Even if we credit Charging Party that a group discussion and plan of action to not share gowns that evening occurred, there is no evidence that the plan went any further than that.… [T]he employees here never took their concerns to management as a group. And, although Charging Party spoke to Charging Party about discharge which appears to have motivated Charging Party to take a stand that evening during shift, there is no evidence that they formed a plan of action together. Nor is there evidence the Employer considered Charging Party’s solo speech and refusal to work to have been concerted.
Furthermore, although Charging Party discussed the gown sharing issue with coworkers on March 30, Charging Party alone confronted management regarding the issue on March 29 and 30 and did not claim on those dates to be speaking on behalf of anyone. While Charging Party invited two employees in the parking lot to join a protest that evening, Charging Party informed them that it … would move forward with or without them. Nor is there evidence that any other employee formed a plan with Charging Party to refuse to work.… No employee requested Charging Party to act on their behalf or authorized to do so; simply decided on their own to represent coworkers.
These conclusions are consistent with the Board’s latest statements on lone-wolf activity, that a “lone wolf” can only engage in concerted activity, that “the totality of the circumstances … support[s] a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action.”
That said, employers should tread very carefully before terminating an employee for raising safety-related issues related to the current pandemic (or otherwise). The termination could violate OSHA. It could violate state law. And, in the correct circumstances, it could violate the NLRA (this case notwithstanding). It also sends the wrong message to your employees—that you don’t care about their safety, which is the absolutely wrong message to send while we are living with COVID-19.
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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