Employee Speaking to Reporter Was Protected Concerted Activity - American Society of Employers - Michael Burns

Employee Speaking to Reporter Was Protected Concerted Activity

The National Labor Relations Board (NLRB) held that an employer committed an unfair labor practice when it fired an employee for participating in an interview with a journalist about minimum wage law in Arkansas.

As part of an interview by a Washington Post reporter the employer was asked about their position on a state proposal to raise the minimum wage. The employer stated they were not in favor of it. The reporter asked to speak to some other employees, and the employer agreed to allow the reporter to talk with a front desk clerk. Bad move. The reporter interviewed the employee for about two hours, and the result was an article that put the employer in a bad light.

Rather than putting out an article addressing why raising the minimum wage was not a good idea as the hotel owner expected, the reporter used the interview to develop an article stating the employer made upgrades to the hotel facility rather than pay its employees a fair wage. The incensed hotel owner then fired the employee (second bad move) from which the reporter then wrote two follow-up articles about the firing of the employee. This article was picked up by other publications doubling the negative press the hotel had already received.

Why did the employer fire the clerk? He said because the employee should not have agreed to the extended interview because it discussed the hotel and the owner. The owner was upset that they did not stop at the issue of minimum wage.  He figured the employee would know to stop.  He had no idea the reporter would chase a separate story. This owner was somewhat naïve perhaps?

In any case, the fired employee filed an unfair labor practice charge with the NLRB alleging the employer in fact terminated the employee for talking to a reporter about minimum wage and its impact on the employee and their co-workers. The Board found that the employee was in fact engaged in concerted protected activity for the purpose of mutual aid or protection of their fellow workers. The employee was also engaged in seeking public support for higher wages for other similarly situated minimum-wage workers in the State of Arkansas.

The employer walked right into a local public campaign to raise the minimum wage and the employee that was fired knew that the Washington Post newspaper article was going to get public support for increasing the minimum wage.

When responding to the media, an employer should get a clear understanding about what the article will be about in order to avoid walking into an issue where the article turns out to be slanted against them. Savvy employers have a media policy that advises employees to refer contacts with the media to a responsible party in the organization and also advise that if an employee speaks to the media, they make it clear that what they are saying is their opinion and not their employer’s.  Employers are also advised to investigate the circumstances of the employee’s discussion with the media to ensure that if any adverse action is taken against the employee it is not illegal as the above employer unfortunately found out.

Source:  Employee’s interview with reporter about low wages was protected concerted activity — CCH HR Library FEDERAL NEWS, (Mar. 24, 2021)

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