Reprinted from the February 15, 2005 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

New Employee Rocks The Boat;
Manager Lands In Hot Water

No manager appreciates new employees who start their tenure with a litany of complaints. You might be tempted to tell them, “If you don’t like it here, leave.” And then help them on their merry way by issuing a pink slip. Sounds like a reasonable plan. Except for one not-so-small detail: the National Labor Relations Act (NLRA).

THE SQUEAKY WHEEL...
“While I am out on vacation next week, please review the employee handbook and then sign it,” supervisor Shannon Court said to Debra Whitney on Whitney’s first day. “I also want you to provide me with a list of clients you worked with at your last job.”

Whitney read the handbook as instructed, but did not sign it or provide the list because she was troubled by some of the policies, including: withholding new employees’ first paycheck until they are fired or quit, and treating hourly employees as commissioned agents.

“I’m surprised. How can these employment practices be legal?” Whitney wondered aloud to her co-worker, Matt Rankin, who was also a new employee.

Whitney then circulated a petition against the terms, which Rankin and other workers signed. On Court’s first day back from vacation, Whitney and her cohorts met with the manager, where they gave her the petition.

Court perused the petition in disbelief. “I don’t appreciate getting this on my first day back...I can’t even believe you prepared it in the first place.”

“We thought this was the best way to get our concerns addressed,” said Whitney.

“You’re going about this the wrong way,” said Court. “We’re a friendly company. All you had to do was talk to me about your complaints. I’ll have to talk to my boss and get back to you.”

...GETS FIRED
Shortly after, Court called for a follow-up meeting with the employees. She explained the hourly/commission status to their satisfaction. When it came to first paychecks, though, she stated that there was nothing illegal about the policy. At the end of the meeting, Rankin and the others signed the handbook; Whitney refused.

“You’re at-will. You do know what ‘at-will employment’ means, don’t you?” Court said to Whitney. “You can be fired at any time, for any reason.”

Later, when Whitney and Court had a conflict over time off that Whitney had requested early on, Court fired her.

“Debra, you’re asking for too much stuff, and you’re protesting everything we say and do,” an exasperated Court said. “Things just aren’t working out.”

“Does the petition have anything to do with your decision?” Whitney asked.

“Well, it does have something to do with it,” Court responded.

THE MANAGER...EATS CROW
Whitney then filed an unfair labor practice charge with the National Labor Relations Board (NLRB). She alleged her employer wrongfully discharged her for complaining about employment practices. The Board sided with Whitney, ruling that:

1) preparing, circulating, signing, and then presenting the petition along with other employees was protected and concerted activity; and

2) the timing of the discharge, Court’s comments about at-will employment, and her admittance that the petition had “something” to do with her decision connected the activity and the termination.Remember, employees do not have to be in a union in order to be covered by the NLRA. If a complaint concerns terms and conditions of employment, it’s probably a protected activity. If it involves more than one employee, it’s probably concerted.

Action Tips
When a new employee hits the ground complaining, don’t automatically hit back with a termination notice.

• Treat each complaint seriously. Follow the same complaint procedure you would for any other type of grievance. Look at the complaints as an opportunity to correct problems that could affect the morale of the department or the company’s legal liability (e.g., withholding first paychecks).
  
  
• Watch your reaction. You may not be happy about a newbie’s constant complaints, but you cannot dangle employment at-will as a reason to stop.

Even if you feel a complaint is petty, put those feelings aside, and explain to the employee in objective terms why no action will be taken on it.

• Guide employees in giving constructive feedback, whether it’s via an open-door policy or a formal, written complaint reporting process. Just be sure not to stifle employees who do it “wrong.”
  
  
• Explain, when applicable, that bad-faith complaints are subject to discipline. If you must discipline, document the process and reasons why. You should not discipline employees for filing complaints in good faith, whether they turn out to have merit or not.
  
  
• Don’t put extra scrutiny on complaining employees. Evaluate their performance as you would normally, and do not single them out for speaking out.
  

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