Is Bathroom Banter Concerted Activity?
That’s the question posed in a case recently decided by an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB). His decision demonstrates that March Madness extends well beyond the basketball court.
The National Labor Relations Act protects not only unionized workers but non-unionized workers involved in concerted activities dealing with workplace concerns. I strongly suspect that this language was included in the statute to protect employees who wanted to unionize or at least stand together to solve a common workplace problem with their employer. However, the NLRB has used this authority to encroach into virtually every workplace in America. The latest example of this trend comes in the form of a March 16 decision involving Quicken Loans.
On February 11, 2015, two employees of Quicken Loans, Austin Laff and Michael Woods, were in a rest room adjacent to a reception area and open for use by the public. The two were having a bad day and Laff told Woods to smile. Woods proceeded to tell him that a potential client should get in touch with a “f…ing client care specialist and quit wasting his f…ing time.” Laff responded to Woods by telling him he understood why he was frustrated. The conversation was overheard by Quicken Loans management, which eventually sent out an email reminding employees in no uncertain terms that there should never be any swearing in the bathroom, especially about clients. It also made clear that it was not professional to accuse clients of wasting employee time.
The email led to a further investigation of the bathroom banter. Laff, who had been involved in previous misconduct, was eventually discharged and Woods was disciplined. Now here’s the part of the story that is most important to you. The ALJ ruled that this brief expletive laden exchange was not simply two employees blowing off steam, but rather protected activity for which they could not be disciplined. According to the ALJ, “there is no question” that Laff and Woods “were discussing common concerns regarding terms and conditions of employment” related to how calls were handled.
I’ve said it before and I’ll say it again, the NRLB makes the CFPB look downright conservative. My diatribe notwithstanding, this case serves as yet another reminder of why you don’t have as much flexibility to discipline your employees as you once did.