GT Alert

Employee Complaints to Customers

October 2005

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Did you know that a maintenance contractor’s employee may not be disciplined or terminated from employment for making work-related complaints to a tenant, managing agent or owner? Under decisions of the National Labor Relations Board, it is unlawful to discipline or discharge an employee for making inquiries or statements to the employee’s customer concerning ongoing labor disputes or working conditions at the job. Such communications, while they may be embarrassing or worse to the employer, are considered “protected concerted activity” under Section 7 of the National Labor Relations Act. For example, in Guardsmark, LLC, 344 NLRB No. 97 (June 7, 2005), the Company maintained a work rule which stated:

• “Do not register complaints with any representative of the client.” While on duty you must not . . . fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees.”

The Board held that “maintaining a work rule that forbids employees ‘dissatisfied with any aspect of [their] employment’ from register[ing] complaints with any representative of the client” violated Section 8(a)(1) of the Act. The Board, however, upheld the second part of the rule, prohibiting fraternization, reasoning that the rule was lawful because:

• Employees would not reasonably read “the rule as prohibiting protected employee communications . . . about terms and conditions of employment.”

The Board did establish a limited exception to the no-communication prohibition. If an employee’s communication rises to the level of being disloyal, reckless or maliciously untrue so as to constitute “disparagement or vilification deliberately intended to impugn the employer’s operation,” such communication is not protected activity. Moreover, the “truth or falsity of the employee’s communication is not material to a determination as to whether the communication constituted disparagement of the employer’s operation.” Cordin, 296 N.L.R.B. at 243.

Thus, contractors generally may not lawfully preclude communications between employees and tenants or representatives of building management, nor implement disciplinary actions regarding work-related complaints or comments.

This Alert was written by Jerrold F. Goldberg and Elisabeth Bernard in the New York office. Please contact Mr. Goldberg or Ms. Bernard at 212-801-9200 if you have any questions regarding this Alert or would like our team to review your existing policy.

© 2005 Greenberg Traurig

Additional Information:

For more information, please review our Employment Law Practice description, or feel free to contact one of our attorneys.

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