Truth is stranger than fiction. Fiction has to make sense.
One would think that it is lawful to maintain a work policy that “prohibits all insubordination to a manager or lack of respect and cooperation with fellow employees or guests.” This is no longer true. A judge recently ruled that such a policy violates the law.
The judge’s decision arose from a rigged bikini contest at Hooters. But do not confuse the novelty of the event with the applicability of the ruling to businesses nationwide. The next time a company thinks about terminating an employee for badmouthing it on Facebook or flaming it on Twitter, that company first needs to understand the Hooters’ case and assess the risk of an unlawful discharge lawsuit.
WHAT HAPPENED AT HOOTERS: KEY LIME PIES AND A BIKINI CONTEST GONE AWRY
Problems began at Hooters when an employee heard the company’s General Manager disparaging another “Hooter Girl”: “Angie eats too many key lime pies after her shift and she needs to go to the gym, rather than laying around with her boyfriend. And that she’s starting to look really bad in her uniform.”
Problems worsened when Hooters’ management sent a memo to employees about an upcoming bikini contest:
Hey Ladies, If you are not signed up for the contest you WILL be working that night. But to clarify if you have your name on the list and you plan on backing out cross your name off the list by Friday. If you are signed up for the contest and do not show up it will be a no call no show by our regional and GM and you WILL BE TERMINATED. Also you MUST be here by 8:30 p.m. If you are late you will not be allowed to enter the contest and you will work the floor that night like it was a scheduled shift. Any questions or if I’m not clear let me know.
This morale killing memo set the stage for post-bikini contest ugliness. The contest ended around midnight, with many tired and angry contestants. Several among the disgruntled and defeated complained that the contest had been rigged. After all, the winner was Hooters’ Marketing Coordinator who helped arrange the contest.
A particularly upset Hooter Girl told the winner, who was part of Hooters’ management, “Congratulations on cheating.” Other employees were not so understated, telling the winner “you’re an f%$ing bitch,” among other not so flattering comments.
Hooters’ Vice President of Human Resources abruptly fired the employee who made the “cheating” comment. The terminated employee was given the following notice:
On April 22, 2013 after the Ontario Swim Suit Competition you got into a verbal altercation with other employees, as well as posting disparaging comments about coworkers and managers on Social Media. This behavior violated the following provisions of the “Discipline” section of the Hooters employee handbook:
- Acts of violence, threats of violence, dishonesty toward guest or fellow employees of Hooters.
- Insubordination to a manager or lack of respect and cooperation with fellow employees or guest.
- Any off-duty conduct which negatively affects, or would tend to negatively affect, the employee’s ability to perform his or her job, the Company’s reputation, or the smooth operation, goodwill or profitability of the Company’s business.
- Any other action or activity which Hooters reasonably believes represents a threat to the smooth operation, goodwill, or profitability of the business.
The fired employee challenged the decision as being unlawful. The judge agreed. He found that the complaining employee had engaged in “protected concerted activity” under the National Labor Relations Act (the “Act”). Under the Act, if “employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.” See http://www.nlrb.gov/rights-we-protect/protected-concerted-activity.
The judge also found numerous provisions of Hooters’ handbook to be unlawful. He concluded that Hooters was “maintaining the following overly broad work rules”:
(a) That prohibit employees from discussing tips with other employees or guest.
(b) That prohibits all insubordination to a manager or lack of respect and cooperation with fellow employees or guests.
(c) That prohibits employees from disrespecting guests by discussing tips with guest or making negative comments or actions to guests.
(d) That prohibits dispersal of sensitive Company operating materials including policies, procedures, financial information, and Company manuals.
(e) That prohibits any action or activity affecting the Company’s smooth operation, good will, or profitability of its business.
(f) That prohibits off-duty conduct which would tend to negatively affect employees ability to perform their jobs or the smooth operation, good will, or profitability of the Company’s business.
(g) That prohibits employees from discussing the Company’s business or legal affairs with anyone outside the Company.
(h) That prohibits employees from publishing on their social networking sites any confidential or proprietary information of the Company.
(i) That prohibits employees from being disrespectful to the Company, other employees, customers, partners, and competitors, posting no offensive language or pictures and no negative comments about the Company or coworkers or posting any information regarding a coworker or the Company.
THE BIG PICTURE FOR COMPANIES
The judge’s decision seems extreme — and it is. Times have changed. So too must company decision makers. Gone are the days when a company can terminate first and think later when an employee disparages the company.
Not all employee conduct is protected. There are boundaries. There is a point at employee conduct goes beyond protected dissent and becomes unprotected misconduct. Determining when that point has been reached is oftentimes challenging. This is particularly so given the government’s growing zeal in prosecuting so-called “Section 7” cases (Section 7 of the National Labor Relations Act prohibits terminating employees for engaging in protected concerted activity).
Next week’s HR Law Insider will analyze real world court cases in which judges have decided specific employee conduct which is protected, versus employee misconduct that is not protected. The objective: to provide your business with guidelines for handling employee dissent, whether it arises on Facebook, Twitter, or in the unlikely event your business decides to rig a bikini contest.
This week’s video recognizes that whether one is in the 1960’s or 2014, the times they are a changin’.