United States: "Smile, Though Your Heart Is Aching": Great Lyric . . . But As A Workplace Policy? Employers Might Be Left Frowning

Last Updated: December 9 2016
Article by Daniel Altchek

Recently the news media reported on a Trader Joe's employee in New York City who was supposedly fired for not smiling enough. (See here and here, for example.) The story behind the glib headlines is that the employee, Thomas Nagle, filed an unfair labor practice charge against his employer, alleging that Trader Joe's maintains work rules that require employees to smile at one another and at their supervisors, to have positive attitudes, collaborate, be team players, and to be friendly, courteous and respectful to coworkers. According to the charge, these rules violate the National Labor Relations Act ("NLRA"), specifically Section 7 of the Act which gives employees (whether represented by a union or not) the right to engage in concerted activities for mutual aid or protection. Nagle claims that these Trader Joe's work rules are unlawful because they would reasonably be construed by employees to restrict employees' Section 7 right to communicate with each other about their unhappiness with their terms and conditions of employment. In this case, the complaint alleges, the employer enforced these unlawful rules by disciplining and then terminating Nagle, an additional violation of the NLRA.

The charge also alleged a host of NLRA violations arising from other provisions in the Trader Joe's employee handbook that were unrelated to Nagle's termination, such as policies prohibiting "communicating threatening or defamatory material" about the employer, fellow employees, customers, or any other person; restricting use of the employer's computer, phone, and email for business purposes only; disclosing confidential company information without authorization; acting in conflict with the interests of the employer; engaging in unauthorized solicitation or distribution on company property; and others. The charge alleges that these policies, as written, would reasonably be construed by employees as prohibiting lawful Section 7 activity and, as such, also violate the NLRA.

The case appears to be in its early stages and it remains to be seen whether any of the allegations will be proven or whether they constitute violations of the Act. But the charge is worthy of notice because it highlights a number of important and timely issues:

  • As we have noted before, the NLRA's Section 7 rights apply to employees regardless of whether they are represented by a union.
  • The customer-experience mindset which originated in the hospitality industry has become prevalent in many other industries (especially retail sales). And increasingly we see employers — startups and newer companies in particular — adopting this approach internally, espousing a "happy workplace" philosophy with the promulgation of workplace rules and policies that stress positive attitudes and respectful interactions among employees. While there are clear business reasons for requiring an employee to act chipper and enthused when dealing with customers, regulating demeanor of employees in their dealings with each other — and especially with supervisors and managers — can become problematic when considered through the lens of the NLRA. Employers should understand that any policies and employee handbooks that, even innocently, urge employees to behave in certain ways with each other may present a risk of an unfair labor practice charge, as Trader Joe's recently discovered.
  • This case also serves as a reminder of the NLRB's activist approach to employee handbooks, with charges frequently including allegations about unlawful provisions which are not related to the central allegations of the charge. Nagle and his attorney clearly sought to exploit that activism here.  Some believe this may change under a new NLRB appointed by President-elect Trump, but for now this remains the NLRB's approach and unless or until it changes, employers should continue to review their policies and employee handbooks for NLRA-compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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