How Far Employees Can Go When Complaining About Their Jobs [e161]

March 9, 2015

Nasir and Matt discuss the allegations of American Apparel intimidating and silencing employees from complaining about the company and talk about guidelines for employers in making social media policies.

Full Podcast Transcript

NASIR: All right. Welcome to our business podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: The Staub and Pasha Brothers are here. Why is that so funny?

MATT: You’ve never mentioned that ever. That’s kind of funny.

NASIR: I don’t know. I was just trying to think, like, what are we? The duo? The Staub-Pasha duo?

MATT: The duo, yeah, I guess.

NASIR: Yeah, I guess that makes more sense.

MATT: Not to get too far off track but you know what I’ve always found was really weird, and you might not have ever even seen this, the commercial for State Farm – I think it’s State Farm – one of the insurance companies.

NASIR: Yeah.

MATT: Do you know who Chris Paul is? He’s a basketball player? No? Okay.

NASIR: I have no idea.

MATT: It wasn’t a question to the listeners; it was a question to you. He’s a player in the NBA and the whole thing is Chris Paul and Cliff Paul were separate. They’re twins and they’re separated at birth. It’s Chris Paul wearing glasses, you know.

NASIR: Oh, okay, yeah.

MATT: It’s this whole thing, it’s like, oh, they were separated at birth and they were adopted by different families and they’ve lived different lifestyles and then they meet each other or something. I don’t understand why they have the same last name if they were both adopted through different families.

NASIR: But, wait, are they really twin brothers?

MATT: No, it’s fake. It’s him and then him wearing glasses, basically.

NASIR: So, even their fake story doesn’t make sense because why would they have the same last name?

MATT: Exactly.

NASIR: Sometimes, you know, it’s not abnormal for the adoptive child to keep their own name, too. Perhaps that’s what it is, Matt, since you think you’re so clever.

MATT: For both of them?

NASIR: Yeah, both.

MATT: The odds of that happening.

NASIR: Maybe that was the condition of the adoption.

MATT: I guess, but they were…

NASIR: I actually did take a course in Columbus Ohio on adoption law, very interesting.

MATT: Oh, I bet.

NASIR: If anyone needs an adoption, don’t contact me just because I’ve taken a course. It doesn’t mean anything.

MATT: Well, I don’t have a good lead-in for this.

NASIR: Yeah, what’s your transition here?

MATT: Maybe we’ll adopt this story or something. I don’t know. We’re dealing with American Apparel which, I believe, is a nationwide store.

NASIR: I’ve heard of it. I don’t think I’ve ever seen one.

MATT: I went there once and I bought a shirt but it’s very slim-fitting – not my thing.

NASIR: Maybe you should lose weight?

MATT: Yeah, that’s true. Well, maybe that’s why these employees that work for them are upset with all their slim-fitting close, that’s probably not even all slim-fitting either but whatever. Anyway, basically, what American Apparel is in the news for is that employees are upset with the company and that happens all the time but American Apparel is taking it a step further and there’s been two complaints filed in the last, as of today, when we’re recording it’s been the last couple of days, but it’ll be a week by the time this comes out.

NASIR: Yeah.

MATT: But it’s saying that American Apparel is allegedly intimidating the employees and trying silencing tactics, preventing these employees from discussing their transgressions, I guess. You know, some of these employees have met off-site after work hours and have just been, you know, kind of complaining about things there, and American Apparel actually sent, one of the people said, they were accosted and interrogated. But the company sent security to this off-site meeting of people gathering and, according to the complainants, intimidating them and telling them to be quiet about voicing their complaints, and that’s led to some of the things here in these complaints that were filed of the National Labor Relations Board.

NASIR: Yeah. So, at the end of the day, the National Labor Relations Board has ruled in the past that these blanket policies – and I think we even may have covered this when this came out; actually, this was a while ago but I think we may have covered this rule, at least – that these blanket policies of restricting speech in general for “disrespectful comments” are not enforceable by employers. And so, in this case, it’s a little ambiguous because, even with these guidelines, you know, you think that you may be complying with it, but it’s still a little ambiguous as to the actual enforcement. So, it’s kind of difficult. At the same time, it doesn’t make sense that you have no prohibition over your employees because where is the line drawn? So, for this example, American Apparel has some policy, according to these plaintiffs, that response to all media inquiries should be “no comment.” That kind of makes sense. It reminds me of the, again, I guess I can relate to an Office episode when they had that printer problem, right? Or, in another time, they had a watermark that was inappropriate embedded in their printers and their paper that they were selling. And so, in that case, if there’s some kind of company controversy, who do you want actually speaking to the press? It shouldn’t be, you know, it shouldn’t be Pam, it shouldn’t be Jim; it should be Michael Scott. It should be the person in-charge that has the authority to actually speak on behalf of the company. Without that kind of restriction, it would seem strange to not have that enforceable. And so, now the question is, “Is that policy in itself, is that against the law or is it just to the extent that there are still a lot of speak about policies that maybe have to do with workers’ rights and things like that?”

MATT: Well, I would much rather have Jim speak on it than Michael Scott.

NASIR: No, it loses the entertainment value, for sure.

MATT: Yeah, but I mean, they’re really crossing the line if these employees are meeting off-site to discuss their gripes with cuts and the number of hours people are working and them complaining about unsatisfactory working conditions, then you know, it’s different if they’re saying that stuff in the break room, you know, during their break or complaining to each other while they’re working. But these are employees gathering together outside of work. I mean, I guess it would depend. Are they standing outside American Apparel? I don’t know.

NASIR: But they’re talking to the media, right? Maybe I’m wrong. But I think the concept is that it’s still being publicized. So, now my question is, okay, let’s say it’s not just a gripe, right? Let’s say that there are legitimate violations of the law going on with American Apparel. But then, the question is, okay, if it’s only legitimate law-breaking, is that speech okay? But what if they just think it’s unfair or that line is very ambiguous, right? Because I understand, of course, we represent businesses most of the time so I understand the employer’s perspective that, you know, we should at least be able to prohibit our employees that are currently employed from going to the media, going to social media and bashing their employer. There has to be some kind of level of loyalties to that. But how do you know if they’re doing something wrong? I think the most appropriate thing is the employee should be prohibited from communicating publicly like that. But, if they have a problem, if there’s a law violation, they should exercise their right to file a claim and, if they’re doing that, then they can speak to that claim publicly. But, without doing so, without exercising their legal right, just kind of bashing their employer, that’s unfair too because they could just use the negative publicity to gain an advantage over their employer, too. And now, the employer’s stuck with this employee that they can’t terminate because you don’t want to be construed as terminating them for exercising a fundamental right.

MATT: They did confiscate some informational flyers so I would assume that the employees were maybe trying to hand those out or something to that effect and the silencing tactics are different as well. I mean, that’s what you were speaking about before, their media policy, that they technically aren’t supposed to say anything other than “no comment.” You can’t really put those broad sort of restrictions on there and this is similar to the broad restrictions that aren’t allowed to be applied for social media in terms of what an employer can prohibit an employee from posting on there. Maybe these people were using social media, but this is more like an old school way to go about it as opposed to, nowadays, people are just posting on social media – not gathering. Like, it’s so rare that people gather in a group in person.

NASIR: It does paint a picture of, you know, twenty or thirty years ago, of some working conditions that are unfair in some kind of factory and there’s no union and so people are starting to meet and gather, like, “Look, we need to fight for our rights. We’re being mistreated in such a way,” and they don’t want to go the legal route because then they’ll lose their job or no one wants to take their case. And so, they have to use these subversive measures to actually get what they want. Maybe I’m naïve but it doesn’t seem like we’re at that point yet. Some of the things that they could be complaining about, in fact, if anything, employee rights are expanding at a rapid speed. And so, if there is some kind of issue, it’s even easier than it was before to just bring a claim. I mean, again, I think that might be naïve on my part. But, at the same time, I can see it from an employer’s perspective, from a small business perspective. Can you imagine that you have to allow your employees distributing informational flyers to other employees about how bad their employer is? Does that make any sense, you know?

MATT: The thing is, employees are going to complain. Like, it’s just part of the deal.

NASIR: Yeah.

MATT: When you’re running a store like American Apparel, when it’s just people doing one of three things – folding or stocking clothes, ringing customers up, or dealing with changing room traffic – I mean, after a while, it’s going to get pretty dry and people are going to complain about something. So, it’s the nature of these kinds of businesses. I mean, the restaurant business has to be even worse, I would imagine. That would just be constant complaining. Have you seen the movie Waiting?

NASIR: Waiting?

MATT: It’s probably, like, ten years old now. Ryan Reynolds? Oh, no, it’s set in a restaurant and I’ve talked to people and it’s like, “Well, how much is that movie similar to real life restaurants?” He’s like, “Oh, that’s exactly how our restaurant was.” It’s just kind of not chaotic completely but…

NASIR: I haven’t seen it but I don’t think I could do that job. I think it’d be very difficult for me. I don’t see how other people are able to do it. I’m just so separated from that world, for sure.

MATT: So, what would you tell an employer? I guess, what advice would you give about, let’s say they found out some of their employees were gathering together? How would you advise them?

NASIR: There is ambiguity as to how to deal with this. The problem is that, you know, whenever there’s ambiguity in that respect or it’s a very subtle issue, most attorneys would take a very conservative approach. But the problem with a conservative approach in this sense is that it doesn’t achieve any of the business objectives because the most conservative approach would be to, yeah, just let them be, but that can be toxic to your business. So, first, I would say, let’s try to figure out a way to handle it in a positive way by – I don’t know – address their concerns. You know, they’re obviously complaining about something – address their concerns head-on, you know, open up dialogue, allow them to communicate and express themselves in a way that’s a little bit more controlled. You know, this sounds kind of demeaning but how you would handle a child that is loud, just give them another toy to play with so that they have some kind of release in that respect. And then, if that doesn’t work, you know, I would find a happy medium to restrict that speech because there has to be some kind of line there but I think it would be very difficult for any attorney to advise them based on what the current law is how it’s kind of developing currently. That’s how I would approach it.

MATT: Yeah, and I think that first step that you mentioned gets overlooked by some people. Step one should be addressing it with the individual or group of people. Sometimes, that gets bypassed.

NASIR: But the reality is, from an attorney’s perspective, if that could have happened, it would have happened anyway. Usually, you know, you’re dealt with the cards you have and the clients you have and I’d be surprised if that hadn’t been tried before because, if it hasn’t been done, then they’re probably not willing to do that anyway because I would think that would be an obvious step.

MATT: Probably, but it’s worth a shot.

NASIR: Well, anyway, this happens more. It’s more likely to happen to a company like American Apparel which has a little bit more of a complex management structure for which may not have, you know, close ties to each employee. A small business, in theory, wouldn’t have as much of an issue, but I’ve seen, you know, all it takes is one toxic employee – bad apple, so to speak – to kind of ruin the culture and really start spreading these comments here and there that “oh, we’re being mismanaged, this is a horrible work environment, et cetera.” Worst case scenario is that they’re right and, if it is a bad working environment, then there’s something that the employer has to do.

MATT: I think Dwight did that to Jim that one time when he was the manager and had, like, the Employee of the Month thing.

NASIR: Exactly. I love how The Office is probably mentioned in every employment issue that we’ve covered so far.

MATT: Oh, yeah, it’s too easy.

NASIR: It’s too easy. It’s basically our Simpsons reference – you know, there’s pretty much a Simpsons for every situation.

MATT: You love Better Call Saul, right? You like that show?

NASIR: Yeah, I’m all caught up.

MATT: It’s basically between him and Steve Carell for Michael Scott. Did you know that?

NASIR: No, I did not know that. He’s a good alternative.

MATT: I think he would have been good, too. Yeah, because he’s actually – if you remember – he was in that one episode where Pam goes to, like, the bizarre-o office and he’s basically just like Michael Scott. I don’t know if you saw that one. It was later on.

NASIR: I didn’t catch that.

MATT: Yeah, he’s exactly like Michael Scott was. It’s kind of funny.

NASIR: Well, in this week’s episode – and I won’t give anything away – there’s one scene which he meets a potential client for which has this invention idea for a patent and I’ve got to show it to you, Matt, because the client asked for him to sign an NDA before seeing his invention. You know, as Matt knows, that’s always an annoyance of mine because, you know, attorneys have this thing called attorney-client privilege and I don’t want to say it’s insulting but I’m kind of oversensitive about it because, I mean, I’m not going to keep signing NDAs for every client. That just doesn’t make sense to me. Anyway, that’s a different issue.

MATT: Yeah.

NASIR: But he uncovers the blanket and it ends up being a toilet – some kind of device – that he plugs in. You just have to watch it. But it just ends up being a very horrible invention. How many times as lawyers we’ve come across that same kind of scenario? It just makes me laugh. You have to check that out.

MATT: Well, as they say in The Office, toilet inventions are easy. So, that was all of Michael Scott’s inventions.

NASIR: That’s true. So, we’ve talked about The Office and Better Call Saul. Those are pretty much our main issues for today.

MATT: Check and check! I think we’re done!

NASIR: All right. Thanks for joining us, everyone.

MATT: Yeah, keep it sound and keep it smart.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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