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NLRB Division of Advice Releases Memo on Concerted Raise Demands and a Termination Amid the COVID-19 Pandemic
Practical Law Legal Update w-029-3885 (Approx. 3 pages)
NLRB Division of Advice Releases Memo on Concerted Raise Demands and a Termination Amid the COVID-19 Pandemic
by Practical Law Labor & Employment
| Published on 01 Feb 2021 • USA (National/Federal) |
The Division of Advice of the National Labor Relations Board's (NLRB) Office of the General Counsel (Advice) released a case-closing email as an advice memorandum in which it evaluated employer actions in the wake of the COVID-19 pandemic.
On January 25, 2021, in Peacock Laboratories, the Division of Advice of the NLRB's Office of the General Counsel (Advice) released a case-closing email as an advice memorandum in which it evaluated employer actions in the wake of the COVID-19 pandemic and directed that the unfair labor practice charge be dismissed.
In Peacock Laboratories, Advice concluded that:
- An employee and three coworkers who concurrently sent identical text messages to the employer's owner demanding a $2.00 wage increase or additional paid time off after discussing those concerns as a group a day earlier engaged in concerted protected activity.
- The charge alleging a retaliatory termination of one employee for sending the text to the owner nevertheless should be dismissed for lack of animus, because:
- the employer provided higher wages up until it was forced to close due to a shutdown order;
- there was no evidence that the subsequently terminated employee had a more prominent role in the concerted texting, or that the employer had a reason to know of that role;
- the employer, which terminated two employees and furloughed the others until permitted to conduct limited business, reasonably asserted that the employee was no longer needed; and
- even though the employer several months later reopened more fully and hired a new employee, the employer showed that it reasonably believed that the charging party obtained alternative employment in the interim.