HR Management & Compliance

Terminating Employees: Firing Employee for Discussing Family Leave Rights with Co-Workers Violated NLRA; Even Nonunion Employers Must Be Cautious

Most employers know the National Labor Relations Act (NLRA) protects an employee’s right to participate in union activities. But the law is actually much broader than that. It also covers workers—union and nonunion—who join together to protest or seek changes in the terms and conditions of their employment. Retaliation against an employee for engaging in such conduct is illegal, and a new case spotlights these risks.

Worker Protests Time-Off Policies

After two months as a loader at a Phillips Petroleum Co. refinery in Washington state, Brandon Ingram told his supervisor he might need family leave because of his wife’s pregnancy complications. The company responded that he didn’t meet the one-year employment requirement for family leave.

Ingram then learned that a state family and sick leave law might entitle him to use sick days to care for his wife. He began talking with coworkers to educate them about their leave rights and solicit their support to change company policy.

A couple of months later, when Ingram’s wife was hospitalized, the company approved Ingram’s request for two days’ sick leave plus two additional days. But on returning to work, Ingram learned he was charged for four days’ vacation. He protested by sending an e-mail to a company manager and a co-worker who was a union committee member.


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E-mails Criticize Employee’s Actions

The manager forwarded Ingram’s e-mail to others in management, with a message stating: 1) he was disgusted at having to deal with Ingram, 2) Ingram was trying to get the union involved, and 3) Ingram was challenging the company “at every turn.” One manager replied that they didn’t need a “political activist at work.”

A few weeks later, Ingram was fired. The termination letter referred to Ingram’s “argumentative discussions” with company personnel and management regarding time-off policies. Ingram went to the National Labor Relations Board (NLRB), arguing that the NLRA protected his conduct in protesting the time-off policies and educating other workers.

Employee’s Conduct Was Protected

The NLRB agreed and awarded Ingram back pay, benefits, and reinstatement. The board explained that the NLRA protects employees’ right to participate in concerted, or group, activity for their mutual aid and protection. Individual action is concerted if it’s meant to initiate or induce group action or is an attempt to bring a group complaint to management’s attention.

The NLRB found that Ingram engaged in protected concerted activity to remedy a perceived inadequacy in working conditions—employees’ inability to use sick leave for family medical emergencies. Ingram, said the NLRB, acted both on his own and his co-workers’ behalf. What’s more, the e-mails circulated among management and the termination letter provided ample evidence that Ingram was terminated because of his protected conduct.

Use Caution

Be sure to evaluate whether the NLRA shields an employee’s complaints or actions before you fire the person or impose other discipline. An employee who protests or complains about employment terms and conditions is probably protected if the person acts with or on behalf of others. Note that if the NLRB finds a violation, it can order you to reinstate the worker and award back pay.

Also, although the NLRB strictly addressed the company’s liability under the NLRA, California and federal family and medical leave laws prohibit retaliation against an employee for exercising their rights to family leave. Plus, remember that under California law, you have to permit an employee to use up to one-half of their accrued sick leave to care for an ill family member, even if the worker isn’t eligible for family leave.