A group of employees feels that your company discriminates against women and minorities. They have a beef with your payment practices. They voice concerns about harassment and workplace safety. They start an email group. You feel they are just instigating conflict. You shut the email group down. They’ve tried surveys and other messaging channels. You manage to block that as well. You fire one of them for leaking confidential information. You place another one on administrative leave. They file Unfair Labor Practices with the National Labor Relations Board — and the news networks are eating it up. What can you do? What should you do?
Do you have to do anything? What happened to employment-at-will? You can fire an employee for any reason or no reason at all, right? In theory, yes, as long as you don’t fire an employee for an unlawful reason. I’ll get back to that shortly. The employees aren’t unionized, so does the NLRB really have any say here? Yes, because the National Labor Relations Act, the law it enforces applies to virtually all private employers, whether or not any workers are represented by a union.
Let’s have a deeper look into the situation, and see what comes up for us…
Our real-life example this week is Apple. You probably gathered that from the image, and you may have heard about its employee/labor relations issues in the news. Here, so far is the nutshell version of what’s gone down:
Back in August, 15 Apple employees created a website, called #AppleToo, inviting Apple staff to share experiences of discrimination by and at the company. As of now, 7 employees have filed Unfair Labor Practice charges against Apple with the National Labor Relations Board. Here is what has happened to at least 3 of those employees:
Senior Engineering Program Manager, Ashley Gojvik, who tried to organize Apple employees, and spoke and tweeted publicly about harassment surveillance and safety issues at Apple, was fired in September. Shortly thereafter, she filed an NLRB charge. Apple had claimed just before firing her that she had disclosed confidential product-related information. She also filed complaints with OSHA the EEOC and the California Labor Commissioner’s office.
Cher Scarlett worked as a software engineer at Apple. On August 7, she posted a survey in the company Slack channel and on Twitter, allowing co-workers to share salary data. Within 48 hours, she received more than 300 submissions. By August 11, she was receiving obscene submissions and subjected to harassment via email and Twitter. As a result of the harassment, she had gone on sick leave. She filed an NLRB charge in September.
Janneke Parrish, a product manager, and another #AppleToo organizer was fired last month. According to her NLRB complaint, “Apple Inc. terminated Parrish’s employment based upon false and pretextual reasons and in fact, terminated her employment in (an) attempt to nip-in-the-bud the successful organizing campaign that Parrish and her coworkers established to address and redress employees’ workplace concerns.” Prior to her termination, Apple allegedly told her she was under investigation for leaking details about a September town hall meeting hosted by CEO Tim Cook. She denies leaking any information.
Independent of the National Labor Relations Act, employees have a right to a workplace free of discrimination and harassment based on sex, race, religion, disability, age, and national origin, among other categories, under both federal and state anti-discrimination laws. Employees also have a right to a safe workplace under the federal Occupational Safety and Health Act and corresponding state laws. Built into those laws are provisions making employer retaliation illegal.
Under the NLRA, employees are guaranteed “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” It is illegal for any employer to interfere with, restrain, or coerce employees in the exercise of their rights. Assuming the allegations against Apple to be true, its actions are shining examples of such illegal behavior.
I would go further. If the allegations are true, Apple’s actions are shining examples of what NOT to do as an employer. Apple, as described by a number of its employees, would also be a shining example of a toxic work culture.
Now, I understand that we will meet toxic people wherever we go. That does not automatically mean that the presence of some toxic individuals in a workplace will lead to a toxic work culture. That depends largely, if not entirely on the tone and commitment from top management. Does upper management allow such a culture to breed?
How does upper management prevent its company from enabling such a work culture? It starts with sending a strong message that it will not tolerate discrimination, harassment, and bullying, among other behaviors. It sends that message by walking its talk, by actually enforcing its policies (because most companies, including the most discriminatory and toxic, have them). It starts with holding upper management to the same standards. It starts with not only having a complaint policy but letting employees know about the procedure and encouraging them to use it. It starts with taking all allegations of discrimination, harassment, and bullying seriously, and not retaliating against any employee that makes a good faith complaint. In short, it starts with doing the opposite of what Apple is alleged to have done.
I tell employers and business owners to speak with friendly employment counsel BEFORE they are sued, before an employee files an NLRB or EEOC or similar charge to learn not just what they can and can’t do under applicable employment laws, but to learn best practices and how to create an ethical, safe, harassment and discrimination-free workplace. Reaching out to your employment counsel before the problem begins — and listening to their advice — is the way to prevent it in the first place.
I have no doubt that Apple has the resources to access the best employment counsel available. Whether it did so, and, if so, whether it listened, is another story. What’s happening with Apple doesn’t have to happen with your company, though. Let Apple be a lesson.
Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.theemplawyerologist.com to contact me for a complimentary 20-minute consultation.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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