Employee Complaints to Customers
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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.
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
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
For more information, please review our Employment Law Practice description,
or feel free to contact one of our attorneys.
This GT ALERT is issued for informational purposes only and is not intended
to be construed or used as general legal advice. Greenberg Traurig attorneys provide
practical, result-oriented strategies and solutions tailored to meet our clients’
individual legal needs.