April 22, 2019

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New NLRB (National Labor Relations Board) Ruling Creates New Hazards for Employer Retaliation Policies

In the latest in a series of decisions impacting non-union and unionized employers, the National Labor Relations Board (NLRB) recently issued a new decision that jeopardizes enforcement of employers’ anti-harassment and non-retaliation policies.  In Dignity Health d/b/a St. Rose Dominican Hospitals and Michael S. Dela Paz, an employee (Dela Paz) had frequent disputes with another hospital employee who worked as a cashier. Dela Paz ultimately threatened the cashier by stating that he would “take care of [her],” and the hospital employer placed him on administrative leave.

While on leave, Dela Paz circulated a petition requesting signatures from other employees who had issues with the cashier.  Although the hospital reinstated Dela Paz after a brief suspension, it warned him that retaliation against the cashier and other coworkers was prohibited by hospital policy. Yet, Dela Paz continued collecting signatures for his petition after his reinstatement. When his supervisors learned of his activities, he was discharged for violation of the employer’s zero tolerance anti-retaliation policy.

Dela Paz filed an unfair labor charge, and the NLRB decided in his favor. Specifically, the NLRB found Dela Paz’s signature campaign was protected concerted activity under the National Labor Relations Act and therefore he could not be terminated for his behavior.  The NLRB ordered Dela Paz be fully reinstated and paid lost back wages.

The NLRB’s decision creates significant dangers for employers seeking to enforce anti-retaliation and anti-harassment policies.  If Dela Paz’s employer had failed to respond to the ongoing signature campaign, the cashier could have filed claims with the Equal Employment Opportunity Commission for retaliation and/or harassment against the hospital. Employers must therefore be extremely careful about navigating between these two hazards when wading into disputes between employees.  These situations, which could cause an employer to run afoul of the NLRB or the EEOC, are highly fact specific and require careful analysis of both statutes and corresponding case law.  Human Resource professionals and in-house counsel alike need to be aware of the interplay of these two statutes and consult with experienced labor and employment attorneys when faced with such difficult fact patterns.

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About this Author

Bradley M. Bakker, Employment, Labor, Attorney, Armstrong Teasdale, Law Firm
Associate

Bradley Bakker is an experienced employment and labor litigator whose clients include public and private companies as well as educational institutions. He defends employers in state and federal courts and before the Equal Employment Opportunity Commission and other administrative bodies.

314-342-8069
Jeremy M. Brenner, Labor Law Attorney, Armstrong Teasdale Law firm
Associate

Jeremy Brenner, a member of Armstrong Teasdale’s Employment & Labor and Non-Compete/Trade Secrets practice groups, combines his experience and education in human resources and law to provide clients with a unique perspective on the challenges they face in the workplace. In addition to providing guidance, he is both a trial attorney and a certified mediator who is trained to assist parties in amicably resolving disputes without resorting to the time and expense of traditional litigation.

314-342-4184
Shelley Ericsson, Labor, Employment, Attorney, Armstrong Teasdale, law firm
Partner

Shelley Ericsson provides practical, sophisticated advice to complex legal problems unique to the labor and employment arena.

In state and federal courts and before state, federal, and local administrative agencies, Shelley defends employers in matters involving claims of discrimination, harassment, retaliation and wages. With a deep knowledge of employment law policies and an eye on the ever-changing economic reality, she litigates matters such as Title VII, Section 1981, the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), the Americans with...

816-472-3143
Jovita M. Foster, Armstrong Teasdale Law Firm, Labor Law Attorney
Partner

Jovita Foster is an accomplished litigator working with small- to medium-sized businesses, public utilities, and Fortune 100 and 500 companies in all facets of employment and labor law.

In state and federal jurisdictions and in front of the Appeals Tribunal, Jovita defends employers and managers in disputes involving claims of discrimination, retaliation, violations of public policy, sexual harassment, wrongful termination, and unemployment appeals. She successfully defends employers and managers in arbitration. Jovita also represents broker-dealers in...

314-552-6698