When is disciplining outspoken employees a legal violation?

Wen Dong Lin, a former restaurant worker, was an outspoken critic of his employer, Kawa Sushi of New York. He reportedly stood up to what he felt was tyrannical treatment of him and his coworkers. The restaurant eventually fired him.

Lin and five other workers sued the restaurant (Han et al v. Kawa Sushi Inc. et al) in federal court, won and got back their jobs and back pay. Management even signed an agreement not to retaliate. Lin and other workers wanted to form a union. But the restaurant blocked the move, bought off the other workers and fired Lin. 

Turns out the company was in the wrong. That example shows the power and current stance of the NLRB, and raises questions for employers who may be facing similar issues. 

What the National Labor Relations Board says

The NLRB likely would have ruled in Lin’s favor, as the federal court did. The board protects the rights of both union and nonunion workers to come together to improve working terms and conditions and pay or correct work-related problems.

The National Labor Relations Act guarantees employees the right to join, form or assist labor organizations. The law also protects employees’ rights to engage in collective bargaining through representatives they choose or to not engage in labor activities.

The NLRA prohibits employers from interfering with workers’ rights in all the above activities. Labor organizations also are forbidden to interfere with workers’ same rights.  

Employers that discipline or fire workers for merely speaking out on work-related problems or issues risk crossing over a legal threshold.

The psychology behind silencing dissidents

HR Dive asked organizational psychologist Billie Blair, PhD, president and CEO of Change Strategies, Inc., about employers who crack down on workplace dissidents with discipline or termination. Blair works with executives on managing change and assessing employees’ growth and leadership potential. She has offices in Texas and California.

HR Dive: Is an employee’s outspokenness ever a disciplinary or terminable offense?

BB: Outspokenness, per se, is neither a disciplinary nor terminable offense.

HR Dive: Why do some employers, like the New York restaurant, feel intimidated by outspoken employees, especially when the NLRB protects their right to do what Wen Dong Lin did?

BB: When an employer feels threatened by an outspoken employee — who is simply expressing a viewpoint — the problem is with the employer, not the employee. The employer does, however, have a right to expect and require a level of civility [in exchange]. Anything less than civil discourse is unsettling for other employees.

HR Dive: What motivates employees to speak out, while others remain silent? Dissatisfaction? Anger at the company? Feelings of not being appreciated?

BB: Possibly all the above, depending on individual circumstances. Most employees speak out because they're frustrated by inaction or poor actions on the part of others, either a boss or fellow workers. Having no sanctioned avenues for contributing ideas (a la Deming's Quality Circles), they often blurt out things out of frustration.

HR Dive: There's something called "psychology safety," whereby employees are afraid to speak out when they should, at meetings, for instance. Can you explain what that is and why "psychology safety" might be worse than being outspoken?

BB: “Psychology safety” is a term I've never heard. However, let's just deal with the fact that many employees remain silent rather than tip their hands when dissatisfied, typically fearing retribution of some sort. This typically means their place of employment doesn't encourage speaking out. Either that or an individual suffers from a passive/aggressive personality disorder [and] doesn't speak up but rather takes clandestine retaliatory actions instead.

A responsible boss will always encourage employees to be straightforward about concerns. It's far healthier all around for the employees, as well as for the welfare of the company. 

Steve Jobs, for example, always encouraged employees to speak out when new developments were being discussed. Raucous discussion would ensue. He would take advantage of the brilliant thinking and incorporate it into the design of the product.  On the other hand, once the decisions had been made, he expected everyone to knuckle down and get the work done because speed of getting products to the marketplace meant very large earnings for the company.    

HR Dive: How do you think employers should handle outspoken workers, other than silencing or firing them?

BB: Listening to what employees have to say is the only way to discern the value of their comments. But this takes courage on the part of employers. Often those with [weak] egos can't handle confrontational discussions. 

HR Dive: When can an employer reasonably believe employees “crossed the line” and take appropriate action against them?

BB: Action is justified when the employee is threatening to either the boss or other employees; has the intention of causing serious disruption in the workplace, which could be construed to be harmful either physically or mentally to others; or refuses to do duties duly and reasonably assigned.


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Filed Under: Legal
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