Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (the Act) protect employees from retaliation for concerted protected activity. Protected concerted activity generally involves two or more employees discussing working conditions like pay, benefits, etc.
One of the employees who lost his job at Twitter this month – a plaintiff in the WARN lawsuit we discussed yesterday – claims that his protected concerted activity motivated the company to end his employment.
Specifically, he alleges that he became concerned that he and other Twitter employees would lose access to essential documents should Twitter law them off. So, he developed a Google Chrome extension that would allow employees to download emails from their Twitter Gmail accounts and thus more easily allow employees to save essential documents. He did this (and shared it with others) to help coworkers protect their ability to get paid if Twitter had to lay them off.
He communicated with his coworkers to help protect their rights in the workplace.
According to the plaintiff, almost immediately, Twitter removed the Chrome extension and then selected him to be one of the first employees let go in its mass layoff in retaliation for assisting others to protect themselves if they were laid off.
But wait a minute! If Twitter is a non-union company, why does the Act matter?
Employees at union and non-union workplaces have the right to help each other by sharing information, signing petitions, and seeking to improve wages and working conditions in various ways. And the Act applies to most private sector employers, including manufacturers, retailers, private universities, and healthcare facilities.
If Twitter changes its business model from social media to railroads, it can escape coverage. Until then, it must deal with this unfair labor practice charge.
Twitter has yet to respond to these allegations. I imagine it will admit removing the Chrome extension but claim that any alleged protected concerted activity did not impact the layoffs.
If, however, protected concerted activity did motivate the social media giant, the Board could award backpay and reinstatement (if the charging party would have otherwise kept his job). These are the typical remedies.
However, earlier this year, the Board’s General Counsel argued for a massive expansion of available remedies including front pay, letters of apology, and interest on credit card charges. It’s all summarized in this blog post.
Ihe real hammer would be workplace postings in prominent places – now that everyone must return to the office for at least 40 hours a week – that advise employees of their right to unionize under the Act.