Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, March 19, 2012

Employees Being Fired For Wearing Orange In Protest

Here is a good law school hypo, but it is based on real facts. A group of workers worn orange in protest of their poor working conditions and were fired. A Newspaper article describing the story is available here

Ok students, is this lawful??

If Florida is an employment at will state, the answer is that they do not need cause to terminate. But, concerted activity for mutual aid and protection is considered protected activity under Section 7 of the NLRA whether or not the workers are unionized. Remember the Washington Aluminum case from 1962? 

The lesson to be learned is that the NLRA applies to non-union workers as well as union workers. That fact was once described in an NLRB decision as one of the best kept secrets in labor law. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

Employment Law | Permalink


Is the employer's animus to "perceived" or "regarded-as" collective activity sufficient to violate the NLRA (ala the ADA)? Does the fact that at least one worker expressly denied that there was any "protest" undercut the theory that the employer was discriminating against an NLRA-protected interest? (Maybe the firm needed to fire 14 people, and 14 showed up in orange one day, so what the hey...?)

Posted by: kent | Mar 21, 2012 3:00:58 PM

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