On March 25, 2020, a National Labor Relations Board Administrative Law Judge (“ALJ”) emphasized the broad reach of Section 7 of the National Labor Relations Act (“Act”) in non-union settings. Ground Zero Foundation d/b/a Academy for Creative Enrichment, Case 4-CA-245956. Charging Party was hired as a summer camp counselor, but was not paid for the ten minutes before the 8 am start or if the workday ended late due to trips. Without first filing a wage claim or complaining to the Company, she discussed the perceived underpayment with co-workers. She also texted with the president to complain about the rounding issue on behalf of both herself and the other counselors. At the end of the day, the president fired Hamill, saying: she was “a bad apple spreading negativity to the other employees”; Respondent’s handbook prohibited employees from discussing wages; Hamill should have spoken with the Company before raising the issue with other employees; and, she should been supervising the children on the bus rather than texting about her wage concerns. In a subsequent position statement, Respondent claimed Hamill was terminated for excessive use of her cell phone, neglect of campers, and insubordination (the last of which was never mentioned during the termination).
The ALJ found (a) the policy against co-workers discussing wages violated the National Labor Relations Act, (b) Hamill was engaged in protected concerted activity by raising the rounding issue among her co-workers and management, and (c) Hamill was unlawfully discharged for that protected activity – indeed, the ALJ found the evidence of this to be “overwhelming.” This was based not only on statements made during the termination meeting and other conduct by Respondent but also significant evidence of pretext, including shifting explanations for the termination, which indicated Respondent was trying to conceal its real reason.
This case provides important lessons to all employers. First, an employer cannot terminate an employee for raising collective concerns in an appropriate manner. Second, evidence of pretext undermining a defense arises from shifting explanations for discharge. Rebutting claims arising from adverse personnel decisions is effective when well-documented and consistent with past practice and lawful personnel policies.