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You Can Discipline Employees for Complaining to Customers About Their Jobs, Right? The NLRB Says No

Volume 4, Issue 7
July 1, 2005

In a unanimous decision, the National Labor Relations Board ("the Board") held that employers cannot maintain workplace rules prohibiting employees from complaining to customers about their jobs.

The case involved a company, Guardsmark, LLC, which provides uniformed security personnel to commercial entities nationwide and one of its employees, Daniel Higgins, who worked as a security guard at a hotel operated by one of Guardsmark's customers. After complaining to both to his managers and hotel representatives about alleged racial harassment committed by Guardsmark's lead security officer at the hotel, Higgins was removed from his job position and ultimately reassigned. Guardsmark felt that Higgins' conduct was in violation of the company's employee handbook rule requiring employees to refrain from registering workplace complaints with any of the employer's client representatives and to instead contact the particular Guardsmark manager-in-charge or any member of Guardsmark's management.

The Board concluded that such rules unlawfully restricts employees' rights under Section 7 of the National Labor Relations Act ("NLRA"), which the Board interprets to include the right to enlist the support of an employer's clients and customers in addressing complaints about their terms and conditions of employment. In addition to such activity being protected under the NLRA, the Ninth Circuit Court of Appeals has found that employee complaints made to customers can also be a form of protected activity if they are made in opposition to alleged discriminatory practices prohibited by Title VII of the Civil Rights Act of 1964. See Equal Employment Opportunity Commission v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983).

While many employers regard such complaints to customers as harmful to their business and acts of disloyalty, the complaints can nonetheless be protected unless the manner in which they are made is unreasonable.

To review the Board's decision in Guardsmark, LLC, 344 N.L.R.B. No. 97 (2005)

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