Scotty Skittish worked in a key area of the Acme plant, where state-of-the-art manufacturing equipment was housed. Acme prided itself on staying one step ahead of its competitors with its technology, and the company implemented several measures to keep corporate snoops away from the plant and to prevent espionage from within. For example, Acme’s employee handbook discussed the importance of protecting company information and explicitly banned all recording devices in the workplace.
Scotty worked on a patented device that sprayed an epoxy paint thinned with xylene on the surface of industrial cylinders. He had concerns about air quality near the equipment, though, and he was vocal about raising them. He insisted that the air ventilation system in the plant was insufficient. Although he was provided with a rubber air purifying respirator with replaceable filters, he asked for better filters because he said the paint spray was seeping through his mask. He wanted additional protective gear to cope with the paint fumes and took it upon himself to ask Acme’s purchasing manager to procure a ventilation fan with a hose and cartridges for his respirators that had “something with a chemical on it” to better filter the epoxy-xylene paint. He also wanted new gloves. However, the purchasing manager consulted Acme’s director of safety about Scotty’s requests and was met with an eye roll. Scotty’s requests were denied.
Convinced that he was going to have to take matters into his own hands, Scotty took photographs of his worksite, including the spraying device, with his cell phone in an effort to document what he felt were dangerous conditions. He told his coworkers that he was contemplating a call to OSHA. He never did call the federal or state agency, but he did show the photos to an employee of one of Acme’s suppliers, who was on-site delivering materials.
When senior management learned that Scotty had taken the photos and showed them to someone outside Acme, he was fired on the spot. He filed a wrongful discharge suit, claiming he was terminated because of his whistleblowing activities. He also filed an unfair labor practice complaint with the National Labor Relations Board. To make matters worse, Scotty threatened to post the photos on Instagram and send them to Plant Services magazine in hopes that a meaty exposé on the safety hazards at Acme would be imminent.
A labor and employment analyst’s response:
Most states have certain exceptions to the standard notion of “at-will” employment — “public policy” reasons for which employers are not permitted to terminate employees. One common exception: firing whistleblowers is generally frowned upon. However, depending on the jurisdiction, Acme will likely escape Scotty’s wrongful discharge suit because Acme can point to a legitimate reason for firing him: violating company policy prohibiting photographs of the worksite. Also, Scotty never actually “blew the whistle,” so he won’t be able to prove that whistleblowing was the actual reason for his termination. Moreover, most states require an employee to state a very clear public policy that would be undermined if an employer were allowed to terminate an employee under the circumstances. Here, for example, Scotty would probably have to cite a specific safety law or regulation and demonstrate that he had an “objectively reasonable belief” that Acme was breaking it.
On the other hand, Acme will likely be liable for violating the National Labor Relations Act (NLRA), based on the labor board’s current careful scrutiny of employer policies and handbook provisions. The board has taken issue with policies that employees might interpret as interfering with their ability “to engage in concerted, protected activity” with coworkers. Acme’s blanket no-photos policy would likely fall under this banner. A complete ban on taking photos could have a “chilling” effect on employees’ efforts to band together to resolve workplace problems. Scotty’s conduct is a good example. He talked to his coworkers about going to OSHA; he may have intended to show his photos to his coworkers or even to a union organizer. Safety concerns, incidentally, are a common impetus.
If the no-photographs policy is unlawful under the NLRA, then discharging Scotty for violating the policy will be considered a separate breach of the labor law. And the fact that Acme’s plant isn’t unionized doesn’t matter. The NLRA applies to both union and nonunion worksites.
Acme also should have addressed Scotty’s fears before he ever started taking photos. While it seems at first glance that his concerns are unfounded, Acme has a duty to investigate his concerns. Doing so would have likely gone a long way in assuaging his fears. Also, Acme’s employee handbook should include a clear policy outlining what steps employees should take if they have concerns about safety hazards in the workplace. If one’s direct supervisor is unresponsive, the safety manager, not the purchasing manager, is the appropriate contact person.
Finally, instead of a no-photos policy, Acme could protect its interests by asking plant employees to sign a confidentiality policy, ensuring that proprietary information is not shared with outside partie, and outlining the consequences of a breach. Even the NLRB has acknowledged that employers have the right to protect their trade secrets and other valuable information. Scotty would be in breach of the agreement if he went public with the photos and could be held legally accountable. Failing that, Acme could have bought Scotty’s silence with a severance, conditioned on his confidentiality, along with a waiver of his right to sue, of course.
Lisa Milam-Perez, J.D., Labor and Employment Analyst
Wolters Kluwer Law and Business, (773) 866-3908, firstname.lastname@example.org