Firing an employee for discussing work warning with a co-worker is illegal

A staffing company learned an expensive lesson after it questioned and then terminated an employee (administrative assistant to the branch manager) who complained to a co-worker about unfair application of the company dress code policy.  The employee felt her discipline was unfair (because other similarly dressed employees were not disciplined) and she told a co-worker that she was thinking about bringing her complaint to a higher level of management (over the head of the local branch manager).  The co-worker later informed human resources about the conversation and complained that the employee had been disrupting his work.  The branch manager was informed, and he decided to terminate the employee (who had several other write ups for rule and policy violations).  He questioned her about the conversation with the co-worker and told her that she put the other employee in a “bad spot,” and that she should have complained to him instead.  The employee’s termination letter stated that she was discharged for being unprofessional, as well as attitude, dress code and negativity to other staff and corporate representatives. UniQue Personnel Consultants, Inc.  (25-CA-132398; 364 NLRB No. 112).

A unanimous National Labor Relations Board panel concluded that the Company violated Section 8(a)(1) of the NLRA by instructing an employee not to discuss her terms and conditions of employment with other employees, customers, or the general public, and by threatening her with legal prosecution if she discussed her terms and conditions of employment further.  A majority of the Board also concluded that the Company violated labor law by discharging the employee because of her protected concerted activity and by interrogating her about that activity.  It was legally protected conduct for the employee to solicit a coworker’s advice and support regarding how to respond to her discipline.  This was concerted activity and undertaken for the purpose of mutual aid or protection.

The Board’s Order required that the complaining employee be reinstated to her former position and make her whole for any loss earnings and other benefits lost as a result of the discrimination – and remove any reference to her termination in company records.  The company was required to post a notice stating that it shall cease and desist from instructing employees not to talk to or discuss with other employees, customers or the general public their terms and conditions of employment.  The company also had to rescind a letter sent to the local police department threatening employees with prosecution if they discussed working conditions with employees, customers or the public.

Do not question, discipline or terminate employees that voice disagreement with company policies with co-workers, or seek the support of co-workers to dispute instances of workplace discipline.  An employee is protected when he/she communicates with co-workers about work issues and seek mutual aid, protection and support.  These legal protections exist in both union and non-union workplaces.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit

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