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Employee’s Improper Access to Secured Area Outweighs Right to Engage in Concerted Activity, NLRB Finds

The National Labor Relations Board has held that an employee lost the protection of the National Labor Relations Act when he improperly accessed a secure area of the employer’s hotel, even though he did so in order to engage in otherwise protected concerted activity. KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018).

The employee, a hotel server and member of the union’s organizing committee, was discharged after leading a delegation of 20 individuals into a secure, non-public area of the hotel to deliver a petition about workplace conditions to the hotel’s general manager. The employee lied to a security officer and used an employee-only passcode in order for the group (consisting of employees and non-employee union committee members and supporters) to gain access to the secured area.

Although delivering the petition was unquestionably a protected concerted act, the Board held the employee’s conduct in improperly accessing the secured area was so egregious that his conduct nonetheless fell outside the NLRA’s protections. The NLRB relied on the balancing test set forth in Consumers Power Co., 282 NLRB 130, 132 (1986), which weighs an employee’s right to engage in protected concerted activity – with some leeway for impulsive behavior – against an employer’s right to maintain order and respect.

Here, the Board determined that the employee’s conduct (particularly his misrepresentation to the security officer) was a premeditated and flagrant violation of the employer’s security protocol, which placed other employees and the hotel property at risk. While the employee attempted to excuse his behavior by identifying other instances in which non-employees gained access to the secure area, the Board noted that these non-employees never had gained access through misrepresentation. The Board concluded the employee’s breach of security could not be “dismissed as an impulsive act” and the employee thus “engaged in sufficiently egregious misconduct to forfeit the Act’s protection.”

Employers are reminded they should not assume that all group activity is protected concerted activity and, thus, exempt from discipline. However, the Board’s standard is difficult to meet , and an employer should carefully analyze all of the facts before considering whether to discharge or discipline an employee who engages in misconduct as part of his or her protected concerted activity.

Jackson Lewis P.C. © 2018


About this Author

Kathryn J. Barry, Jackson Lewis, contractor defense lawyer, discrimination allegations attorney

Kathryn Barry is an Associate in the Long Island, New York, office of Jackson Lewis P.C. She advises clients on compliance with various state and federal laws affecting the workplace, including Title VII, Family and Medical Leave Act, Americans with Disabilities Act, Age Discrimination in Employment Act, Fair Labor Standards Act and New York State and City laws.

Ms. Barry also assists federal contractors in the preparation of affirmative action plans and defends contractors against allegations of discrimination on the basis...

(631) 247-0404

Henry S. Shapiro is an Associate in the Long Island, New York, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counsel.

While attending law school, Mr. Shapiro was the Senior Articles Editor for the Hofstra Law Review and he became a certified mediator in New York State. Mr. Shapiro completed a Concentration in Labor & Employment Law while in law school.

Prior to joining Jackson Lewis, Mr. Shapiro was an Associate at a Long Island law firm representing individuals in administrative hearings for disability benefits. During law school, Mr. Shapiro was an intern for the Honorable Bruce E. Tolbert, New York State Supreme Court, Westchester County (Civil Term).

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Philip B. Rosen, Jackson Lewis, Preventive Practices Lawyer, Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...