Monday, March 19, 2012

Fired for Wearing Orange

OrangeJoe Slater (Toledo) sends us word of this story from the SunSentinel;

Four workers tell the story this way: For the past few months, some employees have worn orange shirts on pay-day Fridays so they'd look like a group when they went out for happy hour.

This Friday, 14 workers wearing orange shirts were called into a conference room, where an executive said he understood there was a protest involving orange, the employees were wearing orange, and they all were fired.

On these facts,it seems fairly clear that the employer thought the employees were engaging in protected, concerted activity, even if perhaps they weren't.


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And, this happened at a law firm. A comment at the end of the article from another lawyer says no violation since FL is an at-will employment state. Ugh. Is there anyone outside of this blog and NLRB employees that still know about the NLRA?

Posted by: Victor Forberger | Mar 19, 2012 10:23:10 AM

I agree, Rick. And yet the so-called "labor and employment lawyer" concluded that no violation of the law "jumps out" in this case. Some labor and employment lawyer.

Posted by: Dennis Walsh | Mar 19, 2012 11:51:21 AM

Sounds like the employer may have bought itself a meritorious ULP charge, under any theory.

Unless, of course, it claims that it fired the workers for bad taste! ;-)

Posted by: James Young | Mar 19, 2012 12:40:15 PM

As a former Tennessee Volunteer, I object to the slander against orange, which eventually grew on me enough to be almost tolerable . . . .

Posted by: Jeff Hirsch | Mar 19, 2012 12:53:55 PM

When I first saw the headline, I assumed it was going to be related to St. Patrick's Day, and maybe involve some religious or national origin issues. But no. . . .

Posted by: Joseph Slater | Mar 19, 2012 4:15:14 PM

Victor, it's a rather common mistake that I've heard from non-lawyers regarding the scope and impact of Right to Work laws, as well.

However, if you look up the "labor and employment lawyer's" Martindale entry, and I'd strongly believe that he was misquoted. His credentials would suggest that he couldn't make such an elementary mistake.

Posted by: James Young | Mar 19, 2012 9:49:01 PM

Far too many employment lawyers don't recognize labor/NLRA issues, even when they (arguably) should be obvious. [But having been misquoted myself by the media in similar cases, misquoting is also a strong possibility here.]

Posted by: Brian Clarke | Mar 20, 2012 7:48:28 AM

No aspersions toward the Tennessee Volunteers were intended, nor should be implied!

Posted by: James Young | Mar 21, 2012 1:11:01 PM

at least one employee denied that there was a "protest." the reports suggest they were dressed up for payday and to go out drinking. does an employer's animus against a "perceived collective activity" (or a "regarded-as union") that isn't protesting wages or working conditions violate the NLRA? wasn't the only collective activity "wearing orange"?

Posted by: kent | Mar 21, 2012 3:08:02 PM

"For example, an adverse action taken
against an employee based on the employer’s belief that
the employee engaged in protected concerted activity is
unlawful even if the belief was mistaken and the employee
did not in fact engage in such activity." Parexel International, 356 NLRB No. 82, slip op. at 4 (2011).

Posted by: Michael Murphy | Mar 22, 2012 11:02:04 AM

good old Parexel; that one has lots in it. i forgot it stood for protection against pre-emptive terminations even without any actual collective activity. thank you!

Posted by: kent | Mar 22, 2012 12:17:19 PM

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