Wow! This story has it all
Was this guy's YouTube post "protected concerted activity"? You decide.
Adam Smith (no relation to that "invisible hand" guy), chief financial officer of biotech company Vante, went to a drive-through at a Tucson Chick-fil-A on Wednesday morning, ordered a free water, confronted the drive-through girl* about Chick-fil-A's "hateful" attitude . . . and recorded the confrontation for all posterity on his cell phone.
*Sorry to be calling her a girl, but she looked pretty young to me. So does everybody, now that I think about it.
Then Mr. Smith posted the confrontation on YouTube, apparently not realizing that he was advertising to millions of viewers that he was a . . . well, kind of a jerk. Even viewers who were not sympathetic to Dan Cathy's views on same-sex marriage thought Mr. Smith was a . . . well, kind of a jerk.
(Here's a link to the video.)
Meanwhile, the Chick-fil-A drive-through girl managed to be courteous throughout her ordeal and gained the admiration of all.
Within 24 hours, Mr. Smith was "no longer an employee with" Vante. They didn't even "wish him the best in his future endeavors." Boy, they must have been mad!
So . . . it seems almost beyond dispute that Vante fired Mr. Smith (or forced him to resign) based on his YouTube post.
Think fast: Has Vante violated the National Labor Relations Act, applying the nebulous standards we've reviewed on this blog in previous posts?
ANSWER: Not even Lafe Solomon himself should have a problem with this one. Mr. Smith's activity had nothing to do with "terms and conditions of his employment." Nor was he acting on behalf of a group of employees, or preparing for group action. Vante's press release made clear that its employees have a right to express their opinions but are expected "to behave in a manner commensurate with their position" and to be respectful and civil.
I don't think Mr. Smith has a chicken leg to stand on. Not even a wing.
UPDATE AND HEAD SLAP: Thanks very much to the readers who pointed out that there would be no protected concerted activity issue with Mr. Smith anyway, because he was a member of management. Just one more reason his termination is probably going to stand.
Visit the Employment and Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment law firm Constangy, Brooks & Smith, LLP.
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