NLRB Says Employee Outbursts Regarding Working Conditions Are Protected

The Biden NLRB recently overturned a Trump-era case that allowed employers way too much discretion to fire employees who engage in alleged unprofessional behavior when discussing working conditions. The case involved a union activist who was fired. The behavior that resulted in the termination was described by the Administrative Law Judge as follows:

Colone spoke persistently and argumentatively,and made a brusque, impolite statement to an employee who was leaving the meeting that he should “just go ahead and leave” be-cause he wasnot needed; he also, upon Dean refusing to provide him with the paperwork related to the new overtime policy, told Dean that he was not doing his job.

 The NLRB said the harsher standard the GOP Board set was erroneous:

The Board has long held, with uniform judicial approval, that causation is not at issue where an employer defends a disciplinary action based on an employee's alleged misconduct in the course of union activity, and the Board determines that the misconduct was not sufficiently egregious to deprive the employee of the protection of the Act. Everyone agrees that the disciplinary action was motivated by conduct that the Board—in fulfilling its statutory responsibility to determine the scope of the Act's protection—has found to be protected. That the employer labeled the conduct abusive, disloyal, uncivil, or insubordinate does not bring its motive into question. Ozburn-Hessey Logistics, LLC, 366 NLRB No. 177, slip op. at 5 (2018), enfd. in relevant part 803 Fed. Appx. 876, 882-883 (6th Cir. 2020); Roemer Industries, Inc., 362 NLRB 828, 834 fn. 15 (2015) (explaining that where an employer defends disciplinary action based on an employee’s misconduct in the course of protected union activity, and the misconduct was not egregious enough to remove the protections of the Act, “the 8(a)(3) violation is established because the antiunion motive is not in dispute--the protected union conduct was the motive for the discipline”), enfd. 688 Fed. Appx. 340 (6th Cir. 2017). 

 The NLRB cited as an example of conduct that is protected:

A good example is the Eighth Circuit’s picket-line misconduct decision in Cooper Tire & Rubber Co. v. NLRB, 866 F.3d 885 (8th Cir. 2017), a case the General Motors Board simply ignored. In Cooper Tire & Rubber, the court enforced the Board’s order requiring reinstatement of a striker who had directed racist taunts at a van carrying replacement workers that had just crossed the picket line. It agreed with the Board’s application of the Clear Pine Mouldings standard and rejected the employer’s argument that Wright Line should apply. 866 F.3d at 889–890. It also rejected the argument that the Board’s order conflicted with the employer’s duty under Title VII, 42 U.S.C. §§ 2000e, et seq. Id. at 891- 892. The court explained that the striker’s picket-line jibes—racially offensive, stereotyped comments about food —did not create a hostile work environment, nor did Title VII create any legal obligation to fire the striker. Id. at 892.41 The Eighth Circuit’s decision is not anomalous.

The Supreme Court has said repeatedly that Title VII is not “a general civility code for the American workplace.” As the Court has explained, “offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” There is no obvious or inevitable conflict, then, between the Board’s approach as reflected in the setting-specific standards and Federal antidiscrimination law.

I can't tell you how often the "general civility code" language has been thrown at me in sexual and racial harassment cases, so it's good to see the NLRB saying what's good for the goose is good for the gander. You don't want a general civility code? Then you can't claim it when people are protesting or discussing working conditions.

I generally suggest that employees remain professional when discussing working conditions with management and coworkers. But the NLRB has made it much more difficult for employers to fire employees who are advocating for better working conditions. 

See? Elections matter. Vote well in 2024.

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What Rights Do Workers Have During Heavy Wildfire Smoke?

It looks like wildfire smoke is becoming a fact of life for many Americans. What rights do you have if your workplace is in one of the dangerously smoky areas? 

OSHA actually has a web page about wildfires. It says, among other things, “Each employer is responsible for the safety and health of its workers and for providing a safe and healthful workplace for its workers. Employers are required to protect workers from the anticipated hazards associated with the response and recovery operations for wildfires that workers are likely to conduct.”

They have a detailed Response page that includes links to requirements for many types of hazards. That page includes a link to a California publication on smoke.

 That publication discusses what steps can be taken by employers to protect both indoor and outdoor workers. For outdoor workers:

Options for limiting workers’ smoke exposure include postponing or shortening time spent outdoors; focusing on only performing high priority tasks; relocating workers or rescheduling work tasks to smoke-free or less smoky areas or times of the day; reducing outdoor workers’ physical activity and exertion levels; encouraging and ensuring workers take frequent breaks inside cleaner air spaces such as enclosed structures or vehicles with recirculating air; and encouraging and using air cleaners with HEPA (or other protective) filters in indoor working areas to reduce overall smoke exposure. In some cases, the use of particulate respirators should be considered to protect workers who cannot implement the exposure reduction recommendations listed above when performing outdoor work (see additional information below). Workers involved in post-fire cleanup activities clearly must be protected from exposure to ash and all other hazards (see sections pertaining to after-fire hazards) by using a range of control methods (e.g., dust suppression, personal protective equipment). When other measures are not sufficient to control a respiratory hazard, OSHA requires employers to provide respirators that are appropriate for the hazard and work situation. An OSHA-compliant respirator program names a qualified person responsible for administering the program and describes procedures for respirator selection, medical evaluation for safe respirator use, fit testing for tightfitting respirators, training on topics such as how to use and maintain respirators, and program evaluation.

But the publication also states: “The Occupational Safety and Health Administration (OSHA) is the regulatory entity for employee health and safety but, in about half of the states, a federal OSHA-approved state OSHA program regulates non-federal workplaces. There are currently no occupational standards specifically for wildfire smoke, except in California.”

For indoor workers, they state: “HVAC systems should be operated continuously while occupied in order to provide the minimum quantity of outdoor air for ventilation, as required by the standards or building codes to which the building was designed. For many office buildings, this is often in the range of 15–20 cubic feet per minute (cfm) per person, although it could be less in older buildings.” They provide details on what steps need to be taken to inspect and repair HVAC systems to protect from smoke. They provide additional information for protection of indoor workers: “In addition to assessing and if necessary modifying the function of the HVAC system, employers are encouraged to take other reasonable steps to reduce employee exposure to smoke, including alternate work assignments or relocation and telecommuting. Some buildings rely on open windows, doors, and vents for outdoor air, and some may have mechanical ventilation systems that lack a functioning filtration system to remove airborne particles. In these cases, the employees may need to be relocated to a safer location. Employees with asthma, other respiratory diseases, or cardiovascular diseases, should be advised to consult their physician for appropriate measures to minimize health risks. Respirators, such as N95s and other filtering facepiece respirators, may provide additional protection to some employees against environmental smoke. Employees whose work assignments require the use of respirators must be included in a respiratory protection program (including training, medical evaluations, and fit testing).”

New York, where wildfire smoke recently wreaked havoc, does have a Division of Safety and Health as part of their Department of Labor but I’m not finding anything specific relating to smoke hazards. They do have a website here: https://dol.ny.gov/safety-and-health

The bottom line is that it looks like New York and many other states don’t have specific safety standards on outdoor smoke, but they probably should. Employees nationwide are covered by OSHA. Here's what OSHA says generally about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

Most of the OSHA-specific standards regarding smoke involve workplace fires. But employers need to protect employees from hazardous conditions, and that includes wildfire smoke. Employers need to take sensible precautions to protect employees. For employees who have medical conditions that place them at high risk for smoke exposure, they need to consider measures such as remote work, alternate assignments, relocation, respirators, and filters. For indoor employees who aren’t particularly vulnerable, employers still need to protect indoor workers with functional HVAC systems, filtration, PPE if necessary, and relocation or remote work as necessary. For outdoor workers, employers should be providing respirators, frequent breaks into clean air spaces, and any other protective equipment necessary.

If you feel you are being put in unsafe conditions, notify OSHA and ask them to inspect the workplace. OSHA has a page about when you can refuse to perform work. It says:

If you believe working conditions are unsafe or unhealthful, we recommend that you bring the conditions to your employer's attention, if possible.

You may file a complaint with OSHA concerning a hazardous working condition at any time. However, you should not leave the worksite merely because you have filed a complaint. If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer, you may have a legal right to refuse to work in a situation in which you would be exposed to the hazard. (OSHA cannot enforce union contracts that give employees the right to refuse to work.)

Your right to refuse to do a task is protected if all of the following conditions are met:

§  Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and

§  You refused to work in "good faith." This means that you must genuinely believe that an imminent danger exists; and

§  A reasonable person would agree that there is a real danger of death or serious injury; and

§  There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

You should take the following steps:

§  Ask your employer to correct the hazard, or to assign other work;

§  Tell your employer that you won't perform the work unless and until the hazard is corrected; and

§  Remain at the worksite until ordered to leave by your employer.

If your employer retaliates against you for refusing to perform the dangerous work, contact OSHA immediately. Complaints of retaliation must be made to OSHA within 30 days of the alleged reprisal. To contact OSHA call 1-800-321-OSHA (6742) and ask to be connected to your closest area office. No form is required to file a discrimination complaint, but you must call OSHA.

In a situation involving wildfire smoke, I would expect that very few situations outside the range of the actual fire rise to the level of presenting a risk of death or serious physical harm unless you have an underlying health condition, so I’d recommend that most workers follow the steps OSHA requires: Bring it to the employer’s attention. If they don’t fix it or provide appropriate protective equipment or otherwise eliminate the danger, file a complaint with OSHA and ask for an inspection. 

Only if the work is so dangerous that you are risking serious physical harm should you refuse to do the work. 

If your employer retaliates for reporting them to OSHA, report the retaliation to OSHA or contact an employee-side employment lawyer in your state.