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Employees criticizing the firm? Where to draw the line

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in Employment Law,Firing,Human Resources,Leaders & Managers,Management Training

Execs and supervisors may bristle at criticism from employees and instinctively want to punish offenders.

But that apparent insubordination can sometimes be considered protected speech under federal or state law. Knowing what’s protected and what’s not is key.

While employers in at-will states can fire workers for almost any nondiscriminatory reason, certain exceptions exist. A collective-bargaining agreement or individual contract can set limits on terminations. The National Labor Relations Act (NLRA), Sarbanes-Oxley and state whistle-blower laws allow union and nonunion employees to criticize matters related to working conditions, wages, hours and dishonest practices.

The NLRA says that both union and nonunion employees can criticize organizations (in public or private) under the following conditions:

  • The criticism is connected to employee involvement in “concerted activities” that are related to the “mutual aid or protection” of the work force or collective bargaining.
  • The criticism is related to ongoing labor disputes and aren’t disloyal, reckless or malicious enough to lose the law’s protection.

Still, you can discipline employees for certain types of criticism. Some examples:

Suppose a local newspaper publishes a letter to the editor from an employee who says “Don’t buy the company’s paint, it cracks within two months.” You can discipline the employee even if the claim is true, says Allan Weitzman, a partner with Proskauer Rose in Boca Raton, Fla.

Why? The employee represented only himself and such comments are maliciously disloyal, notes Weitzman.

Case in point: An employee posted a message on a Web site that said his employer “is being tanked by a group of people that have not good ability to manage it.” The company fired the employee, and a court upheld the decision, saying the criticism was maliciously disloyal and insubordinate. (Endicott Interconnect Techs. Inc. v. NLRB)

But such a ruling isn’t a license to crack down on employee criticism, especially if it represents collective thought.

While you can discipline an employee who gripes that “pay at this company stinks,” avoid taking action against employees who say something like, “I’ve spoken to other employees and we agree that the company doesn’t give us enough vacation time.” Be similarly wary of disciplining workers who sign letters to management complaining of working conditions.

“There’s a high probability those communications are protected activity,” says Jonathan Landesman, an attorney with Cohen, Seglias, Pallas, Greenhall & Furman in Philadelphia. Reason: Employees are criticizing in concert with each other about workplace-related issues.

Finally, check the whistle-blower laws in your state. Generally, they protect employees who publicly complain about illegal activities occurring in your organization. And don’t even think about firing an employee who blows the whistle about false financial reports; such employees could be protected by the new Sarbanes-Oxley law.

Best bet: Before firing employees for their criticisms, run the issue by your employment attorney.  

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