Government Contracting

Employees concerned about the coronavirus and its impact on their health and that of their family members have been speaking out in the workplace, on social media and in the press. Employees have been raising issues such as social distancing in the workplace, available safety equipment and disinfecting their workspaces. There have been a number of recent articles concerning discipline issued to employees for raising those concerns. Employees’ concerns and discussions about those concerns are likely to increase as businesses begin to reopen and more employees are brought back to physical workspaces.

It is important to remember that most private sector employees are protected by the National Labor Relations Act (NLRA) even if the employees are not represented by a union. The NLRA provides protection, among other things, to employees who engage in concerted activities for mutual aid and protection. Depending on the facts involved, speaking with fellow employees, posting on social media and speaking with the press may all fall under the protection of the NLRA.

Although not coronavirus-related, a recent decision of the National Labor Relations Board (NLRB) addresses this issue and serves as a cautionary tale for employers. In Maine Coast Health Facilities, d/b/a Maine coast Memorial Hospital, 369 NLRB No. 51 (March 30, 2020), the NLRB was asked to decide if an employee’s act of writing a letter to the editor was protected by the NLRA. The employee involved in the dispute, Karen-Jo Young, an activities coordinator at the hospital, wrote a letter to the editor of a local newspaper “discussing staffing shortages at the hospital and the impact on her and her coworkers’ working conditions.” It’s important to note that Young was not complaining about a staffing shortage in her own job classification. The day the letter was published, Young was fired by the hospital for violating a policy which forbid employees from releasing information about the hospital to the news media. The NLRB found that Young’s discharge violated the NLRA’s protection for employees who engage in concerted activity for mutual aid and protection and Young was ordered to be reinstated.

Perhaps more so now than prior to the pandemic outbreak, employees who have workplace concerns will look for a way to raise those concerns and have the concerns addressed. Employers who provide an internal avenue for employees to raise their concerns and, equally important, addresses the concerns that are raised, are less likely to see those concerns raised in a letter to the editor. In addition, failing to provide an outlet for employees to use may cause employees who are not currently represented by a union to reach out to a union for help. The pandemic and its impact on the workplace raises many issues that are ripe for use by a union seeking to organize a workforce. Furthermore, an anxious workforce is less likely to be focused on and engaged in their work. Listening to and responding to employees’ concerns will help them focus on their job.

This alert was written by Marc Sloane, a lawyer in the Labor, Employment, Benefits & Immigration practice group at Miles & Stockbridge.

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