Amanda DeMatteis: Hi, Josh.
Josh Goodbaum: Hi, Amanda. What are we talking about today?
DeMatteis: Well, I have a hypothetical for you. Let’s say an employee comes to see you, and they say, “Listen, Josh, I was talking about my boss. He was really being a jerk, and I was telling a coworker all about what my boss was doing that was really irritating me. It got back to my boss. I ended up getting fired. I loved my job. I was there a long time. Do I have any recourse?”
Goodbaum: Maybe, Amanda. Complaining about your boss, saying that your boss is a jerk, is probably a pretty common activity, but it’s not a legally protected one in the abstract. So, merely saying “Hey, I was just blowing off steam. It’s no big deal. How could they fire me for that?” might be a good argument, but it’s not a good legal argument because of the at-will employment doctrine that we have in Connecticut and most other states around this country. But there are a couple of important exceptions.
If you were complaining to a colleague because your boss was not being just a jerk, but your boss was being a racially discriminatory jerk, or your boss was being a retaliatory jerk, or your boss was sexually harassing you or another colleague, then that might constitute opposition to discrimination or retaliation under our employment laws, and that is protected activity for which you cannot be terminated.
The other big exception is the National Labor Relations Act (NLRA). The National Labor Relations Act primarily protects the rights of non-managerial employees to gather together to form a union or otherwise advocate for their mutual aid or protection. Now you might say, “How is complaining to my boss related to forming a union?” It’s not, but if you were trying to enlist your co-worker who also works for the same boss to advocate together with management about how your boss treats you, then that is advocacy about the terms and conditions of employment and can constitute protected activity under the National Labor Relations Act, and you cannot be terminated for engaging in collective action for mutual aid or protection under the National Labor Relations Act.
But very importantly, the National Labor Relations Act only protects non-managerial employees. So, if you are a supervisor and you were complaining to another supervisor about your manager or director, you don’t have any recourse under the NLRA. You only have that recourse if you are a line employee who does not have primary responsibility for managing other employees.
So, think about whether you were opposing or advocating against discrimination or retaliation, and think about whether you were acting for mutual aid or protection under Section 7 of the National Labor Relations Act.
DeMatteis: Thank you so much. This comes up a lot, so a couple of cliff notes. Remember that the substance of this speech is really important, and who you are talking to — managerial versus non-managerial roles, and what role you are in.
That’s really good information, Josh. Thank you, and thank you for watching. We’ll see you next time.