dfgf wwArticleHooters Restaurant “Respect” Policy Falls Prey to the NLRB
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by Kelly A. Hayden, JD, Director, Employment Law Services/General Counsel
Published June 3, 2014
It seems more than reasonable to ask your employees to be respectful to co-workers, supervisors and customers while working. However, the National Labor Relations Board (“NLRB”) has been, throughout the past few years, consistently finding that employer policies asking employees to do just that are in violation of the National Labor Relations Act (“NLRA”). Hooters is the most recent employer to have its policy ruled illegal.
The case began when a Hooters restaurant in California held a bikini contest in which its waitresses could participate. One of the losing waitresses complained that the winner “rigged” the contest by ensuring that one of her best friends was at the restaurant and chosen as a judge. An argument ensued and the losing waitress allegedly used profanities and acted in an intimidating manner. She was terminated for, among other things, acting violently toward guests and fellow employees, insubordination and improper off-duty conduct. (The waitress posted about her experience on social media.)
The administrative law judge hearing the case found in favor of the waitress and required the restaurant to post a sign on its premises stating, in part, as follows: “WE WILL NOT maintain or enforce a provision in our Employee Handbook that prohibits employees from being disrespectful to the Company, other employees, customers, partners, and competitors, posting no offensive language or pictures and no negative comments about the Company or coworkers of the Company.”
This line of cases is of great concern, as they seem to suggest that employers do not have the right to set a code of conduct or work rules in the workplace. However, no case involving “respect,” “insubordination,” “gossip” or other such conduct policies has been heard by the full NLRB. Employers can be hopeful that the full board would strike a fairer balance between employees’ rights under the NLRA and employer rights to proscribe acceptable conduct in the workplace. See Hoot Winc, LLC and Ontario Wings, LLC dba Hooters of Ontario Mills, Joint Employers, 31-CA-104872 (May 19, 2014).
In the meantime, it is more important than ever that you consider a legal review of your employee handbook. Contact Kelly Hayden and Sonal Shah to discuss how we can help with your organization’s handbook.