A NLRB ALJ has ruled that a Hooters Handbook’s Code of Conduct that listed a variety of “don’ts” – including “don’t disrespect patrons” – violates employee rights under the National Labor Relations Act. Hoot Winc, LLC, NLRB ALJ No. 31-CA-104872 (May 19, 2014). Yes, you read that right.
There’s no question that the current NLRB is more employee friendly than it has been in a long time. There are a number of recent decisions from the Board to that effect. And, look no further than the Northwestern University decision that college football players are employees who can unionize to see that this shift is alive and well in the District offices too.
So, an ALJ decision that a Handbook’s terms might create a chilling effect on employee Section 7 rights is not really a surprise. It’s settled law, for example, that employer rules prohibiting employee discussions of wages violates the Act. And, unless an employer has been under a rock for the last couple of years, it is pretty clear that a “NLRB-approved” social media policy is about the only way to avoid challenge there.
But what makes this (50 page) decision so much fun to read are the facts involved and the outlier issues presented. Here’s the story. Alexis Hanson was a Hooter Girl (that’s the name you get is you are a server at Hooters) in Ontario, California, which is east of Los Angeles. Hanson, who participated in the annual bikini contest, complained that she thought it was “fixed,” as did a number of the other Hooter Girls. She, along with other Hooter Girls, also complained about comments made by Managers and employees – things like calling them “stupid,” a “dumb blonde,” a “diva” or commenting that one Hooter Girl was getting “fat” and another’s “singing career was not going anywhere.” Taken as a whole, it sounds like the comments and post-bikini contest issues were part of a real life episode of Mean Girls, with lots of profanity thrown in.
Anyway, after the post-bikini contest disagreements, Hanson was told she was being fired for “cursing at [the winning contestant and Marketing Director] the night of the bikini contest. When Hanson explained that she did not curse at anyone, she was told “Okay. Well, then you are being terminated for your negative social media posts.” In a follow up letter, Hanson was told that her conduct – the social media posts – violated a number of Hooters Rules, including one that prohibits any “action or activity which Hooters reasonably believes represents a threat to the smooth operation, goodwill, or profitability of the business.”
The ALJ found that Hooters violated the NLRA in firing Hanson, who had engaged in protected concerted activity by challenging the disrespectful comments of managers and complaining that the bikini contest was rigged, including her social media posts. Then the ALJ went on to address the problems with many of the Hooters Handbook’s rules. One Rule advised employees not to show “[d]isrespect to our guests including discussing tips, profanity or negative comments or actions. . .” This rule, the ALJ said, was unlawfully “overbroad and unqualified” with no examples or clarifications provided. Really.
So, what are the take-aways here? First, note that there was no union involved. Non-union employers need to be remain aware that the NLRB continues to exert its authority in settings where the employees are not represented by a labor organization. Second, employers need to recognize that the NLRB is looking hard at any restrictions placed on employees’ abilities to voice disagreement with management. Finally, employers are well served to spend some time and effort to make sure the company employee handbook is up to date and appropriately takes into account the NLRB’s recent decisions. Not all of them make sense, and it is likely that not all of them will survive court challenge. But be forewarned – for the moment that may not matter.