Is a Negative Attitude Protected Activity

How’s Your Attitude? 

With all of the pressures and problems business owners face on a daily basis, it’s certainly understandable when they occasionally have a negative attitude. Most business leaders would say this is a fairly common occurrence, but something they work to avoid. The same holds true for employees who will, on occasion, have a negative attitude toward their work, coworkers or customers. With the ever expanding employee rights trend in employment law, we might all wonder if a negative attitude in our employees is just something we have to accept. Well, according to the National Labor Relations Board, the answer to that question is, thankfully, no. As you can see in the following article prepared by our labor attorneys, when an employee’s negative attitude begins to adversely affect our customers, or manifests itself in public criticism of the company, employers have the right to take decisive and permanent action. This very important article follows. 

Is a “Negative Attitude” Protected Activity? 

This issue was considered by a three-member panel of the National Labor Relations Board in the case of Copper River of Boiling Springs, LLC (Feb. 28, 2014). NLRB Chairman Mark Gaston Pearce considers disciplinary discharge for a “negative attitude” as chilling employee rights to be critical of their employer. According to Pearce, this interferes with employee rights to engage in concerted activity regarding wages, hours or conditions of employment. The three-member panel included the two Republican members of the NLRB, Philip Miscimarra and Harry Johnson, both of whom concluded that the employer’s “bad attitude” rule was permitted. 

Copper River is a restaurant. Its handbook prohibited “insubordination to a manager or lack of respect and cooperation with fellow employees and guests…including displaying a negative attitude that is disruptive to other staff or has a negative impact on guests.” Two employees were terminated after the company received reports that the employees used foul language in complaining to customers about the employer. In upholding the discharges, Miscimarra and Johnson stated that the employer’s policy “limits the rule to unprotected conduct that would interfere with the Respondent’s business interests.” 

“Attitude” is not a self-defining term. The NLRB upholds employer terminations when an employee’s attitude relates to an employee work assignment or an employer’s business interests, such as communications to customers. Even a bona fide employee concern may be unprotected if it is expressed inappropriately. 

This article is reprinted from the Employment Law Bulletin produced by the labor and employment law firm of Lehr, Middlebrooks & Vreeland, P.C., Birmingham, Al.