Small businesses: Depending on the type of business and your gross annual business volume, the National Labor Relations Act (“NLRA”) probably applies to you! (As a rule of thumb, overall, most non-government employers with a workplace in the United States are covered.) It is important to be aware of the implications of the law and ensure that your business is in compliance. Mistakes can be costly for companies of any size. One recent case involving the X Corporation (formerly Twitter) is instructive.
In late 2022, CEO Elon Musk told Twitter employees that if they didn’t show up to the office in person, then “resignation accepted.” In response, an employee posted a message to a Twitter internal chat account where she told fellow employees, “Don’t resign, be fired,” and “You gain literally nothing out of a resignation.” She was terminated shortly thereafter.
On October 13, 2023, the National Labor Relations Board (“NLRB”) filed a Complaint alleging that X Corporation, formerly known as Twitter, engaged in an unfair labor practice when it terminated an employee who the NLRB alleges engaged in “concerted activity” which is a protected right. Concerted activity is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. It includes the right to talk to coworkers about wages, benefits, and working conditions, joining together to talk to the employer about problems, trying to induce group action and other similar actions. Under the NLRA, it is illegal to interfere with, restrain, or coerce employees who exercise their right to engage in such activity.
At a hearing before an administrative law judge on January 30, 2024, the X Corporation argued that the employee had not engaged in protected conduct for two reasons: 1) the messages constituted “insubordination,” which is not a protected right, and 2) the employee was a supervisor who is not protected by the NLRA. The NLRB responded that the employee had recently been demoted from supervisor, so she was protected.
As for insubordination, the NLRB argued that the messages were not insubordinate because the employee was not actually telling fellow employees to disobey the CEO’s command but instead engaging in protected activity, namely, advising fellow employees of their rights by telling them that it would be better to force Twitter to terminate their employment rather than submitting a resignation. The employee testified that she sent the messages because she believed that an involuntary termination comes with certain legal benefits that resignation does not.
The outcome of the case will hinge on issues of fact, namely, whether the employee was or was not a supervisor when she sent the messages and whether or not her messages were insubordinate or protected.
Cases like this provide a valuable lesson to employers of any size: proceed with caution when considering terminating an employee who has engaged in conduct that could arguably be seen as “concerted activity.” Contrary to a common misconception, the NLRA does not just apply to unions or efforts to form a union. Colorado employers should note that discussions of salary among employees are also protected by Colorado’s Pay Transparency law.
The above commentary is for informational purposes only and does not constitute legal advice. Fortis Law Partners attorneys monitor all Board decisions and general counsel initiatives. If you have any questions about these topics, potential risks before the Board, a planned termination, or your workplace rules and policies, please contact an attorney at Fortis Law Partners.