It is a breach of the National Labor Relations Act2 (NLRA) to release or discipline an employee because of his or her membership in a union, or due to his or her participation in a union or other "concerted" action. Whether your employees are represented to by a union or not, they are permitted to participate in “concerted” activity and can file a charge against you with the National Labor Relations Board (NLRB) if you violate their rights.
WHAT IS CONCERTED ACTIVITY?
Concerted activity implies, even without a union, acting up in the interest of coworkers or mingling with others to accomplish a common goal. It has been defined as any group activity by workers for the furtherance of their common interests.
In most cases, the action must be taken with the authority, or in the interest of, other employees, and not exclusively by or in the interest of the specific employee(s) engaged in the activity. Participating in a campaign or a strike are specific examples of union activities. However, the concerted action does not need to be in connection to a union to be protected. For instance, if employees are sharing information about their wages, that is protected activity. More such examples of protected and concerted activity are: work stoppages, filing grievances, safety-related protests, sharing information about wages, or asking for a wage increase for a group of coworkers, and honoring picket lines.
The NLRA protects employees who purposefully decline to work in protest over wages, hours, and other working conditions, workers who take part in conduct that is unlawful and violent aren't protected. It's additionally important that the NLRB held that the "reasonableness" of the employees’ decision to take part in concerted action is irrelevant. Thus, your employees’ conduct might be protected regardless of the fact that they do not have an objective, reasonable premise for their activities.
FACTORS TO CONSIDER
While selecting a strategy in response to an employee disciplinary issue, there are various factors that you should consider - assess the mitigating and aggravating factors.
Mitigating factors include long service with the organization, history of satisfactory performance, earlier acclamations or awards, and defenses or excuses offered by the worker in light of the issue being referred to.
Aggravating factors include, a short length of service with the organization, history of unsatisfactory performance, earlier occurrences of performance/conduct/attendance problems, and the extent to which the employee has reacted to the present issue with disavowals or dishonesty.
Remember that you can simply consider options short of a release such as written warnings, demotion, probation, transfer, or suspension. Another important factor to consider before teaching an employee is the risk associated with retaining the worker. These risks include:
The employee will participate in future misconduct resulting in employer liability for that conduct, including “negligent retention” of that employee.
The employee’s attitude will deteriorate since he sees that he has gotten away something.
That the morale of his or her coworkers will be harmed if this worker is retained.
The risk of "setting a precedent" which different employee will expect you will follow later on.
You must also consider the dangers associated with firing or disciplining the employee. Assess the risk that the employee will claim discrimination on the basis of membership in a protected group.
a.) To minimize this risk, you need to ensure that this employee is treated the same as employees in a similar situation (who are not members of the protected group). Moreover, you need to prove that the disciplinary procedure was not related to the employee’s membership in the protected group.
b.) Additionally, assess whether the employee has a legitimate claim for violation of an implied or expressed contract. To curtail this risk, you need to ensure that the disciplinary action taken (including the manner in which it was taken) is consistent with the employee’s agreement and any policy handbook which you have created.
c.) An employee can claim retribution for engaging in protected activity. To minimize this danger, ensure that the employee is treated the same as employees who have not engaged in protected activity. Additionally, you will need to prove that the disciplinary procedure was not related to the employee’s protected activity.
You must also consider the potential liabilities if the jury presumes that your action was unlawful, including back pay, front pay, reinstatement, punitive damages, and lawyers’ fees. It is never great to retain an employee since it is important to assess the risk of a claim and proceed with caution.
When you have settled on the decision to discipline, document all of your steps.