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Last Saturday was St. Patrick's Day, and many employees
celebrated it on Friday by wearing green and getting together after work.
story reported that 14 employees of a Florida law firm were fired for
wearing orange shirts. Traditionally, the color orange has been
associated with the Protestant Irish, and wearing the color on St. Patrick's
Day was considered to be an act of defiance.
According to four employees, employees wearing orange were called into a
conference room; told by an executive that he understood that there was a
protest involving orange; they were all wearing orange; and they were all
fired. The executive then said that anyone wearing the color for an
"innocent" reason should speak up. One employee explained that
they wore the color because they would all go to happy hour together. A
caucus was held, and the decision to terminate the employees was upheld.
Florida is an "at will" employment state. If someone in the
firm felt that wearing orange close to St. Patrick's Day was an inappropriate,
that is what "at will" means. What if the reason for the action
were different; what if the employer thought that the employees were going to
protest even though the employer was not sure of what? After all, one
executive is quoted as saying wearing the color was part of protest.
Does the National Labor Labor Act have any application? Under the Bush
Board, the answer would have been "no." What about the Obama
Board? The answer could well be "yes." The employees were
certainly engaged in concerted activity--wearing orange shirts. What
about protected activity? Did the employer's concern make a difference?
The Obama Board has recognized the theory where employer conduct
constitutes a "preemptive strike" to prevent future protected
activity. In Parexel International, LLC., 356 NLRB No. 82 (2011),
a three member panel adopted a theory finding a violation even where the
employees had not engaged in protected activity. The panel stated that
when an employer acts to prevent protected activity..nip it in the bud...that
action interferes with and restrains Section 7 rights and is unlawful without
The executive at the law firm did mention the awareness of a protest, and it
does not take much activity when related to work to involve terms and conditions
of employment. If the action were taken out of the employer's concern
that the employees were poised to protest or could do so in the future, would
the firings be considered "preemptive" under Parexel?
Maybe the employees have no recourse, but under the expansive approach of
the Obama Board, it is not as certain as one might think. Failure to
consider the possible impact of the NLRA to at will employees is a mistake.
For additional Labor and Employment law
insights from John
Holmquist , visit the Michigan Employment Law
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