OK to Fire HR Generalist for Threatening to Unionize Workers

A company was growing and wanted to hire someone who could ensure that it remained compliant with workplace laws, so it hired an HR Generalist. After auditing personnel files and payroll, the HR Generalist drafted a letter that said, among other things:

  • He had major concerns about the workplace;
  • One employee was racist;
  • One employee shouldn’t play uncensored music;
  • The company’s paid time off policy was sub-par because employees were making less than the average demographic salary;
  • He and other employees were misclassified as exempt under the Fair Labor Standards Act; and
  • One manager was age- and sex-biased

The HR Generalist concluded by saying he has and “will continue to give serious thought in regards to contacting the NLRB and attempting to organize and eventually form a union.” The HR Generalist did not discuss any of his concerns with other employees. He was fired after his supervisor read the letter. He filed a charge with the NLRB, and, of course, the NLRB issued a Complaint against the Employer.

The NLRB believed that terminating the HR Generalist was a preemptive strike to prevent him from engaging in statutorily protected conduct. Thankfully, the Administrative Law Judge rejected this theory since the HR Generalist never discussed any of the concerns raised in his letter with other employees. Per the ALJ, the HR Generalist “was interested only in protecting his own job by threatening to initiate a variety of legal actions, and that he had no interest in promoting, supporting, or assisting other employees in seeking to address any of those issues.

On appeal, a unanimous NLRB upheld the ALJ’s decision. Notably, the NLRB said the HR Generalist and the Company shared an expectation that he would bring non-compliance issues to the company and together they could find solutions to the problems. The HR Generalist betrayed the Company by pursuing a course of action inconsistent with the purpose for which he was hired.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

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