Fourteen Workers Fired for Wearing Orange Shirts

by Eric Fink

The story of 14 workers fired for wearing orange shirts made the online rounds earlier this week. As four of the workers explained, they’d planned to celebrate pay-day at an after-work happy hour, and their color-coordinated shirts were intended to identify them as a group. But management at the law firm where they worked accused the 14 of staging some sort of protest, and summarily fired them all.

The incident highlights the despotic nature of employment relations, and the largely unchecked power of bosses, in the typical American workplace. The law in the United States (with the sole exception of Montana) treats employment as an “at-will” relationship. In principle, this means that either party — employee or employer — is free to end the relationship at any time, for any reason or for no reason at all, without facing legal consequences. In practice, this “freedom” is one-sided, as it is generally far easier for the boss to find a new worker than for the worker to find a new job. As a consequence of the “at-will” rule, workers find themselves subject to the most unreasonable demands and capricious whims of their bosses, with little recourse beyond the right to say “take this job and shove it.”

However, U.S. law does provide workers with one significant weapon against employer abuse: the right to engage in collective action. Under Section 7 of the 1935 National Labor Relations Act (“NLRA”), workers have “the right to self-organization … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” While this right is most frequently associated with labor union organizing and representation, it applies equally to any group of workers who act together to secure fair and decent treatment on the job, even without a formal union organization.

Because of the at-will rule, it would be perfectly legal, if patently unreasonable and palpably unfair, for these employees to be fired simply because their boss disliked the color orange, or because the boss was a Florida State basketball fan and thought that the employees were wearing orange to support Syracuse in the NCAA tournament.

But in this case, the employer’s motivation seems to have been less arbitrary. If, as the employees have reported, the employer believed the orange shirts were part of a group protest, then the right to engage in concerted activity under the NLRA comes into play. The National Labor Relations Board has repeatedly held that “actions taken by an employer against an employee based on the employer’s belief the employee engaged in or intended to engage in protected concerted activity are unlawful even though the employee did not in fact engage in or intend to engage in such activity.”

[http://mynlrb.nlrb.gov/link/document.aspx/09031d45800b8a01"Monarch Water Systems, 271 NLRB 558, note 3 (1984)]

The recourse for these employees is to file a charge of unfair labor practices. If the NLRB determines that they were indeed fired in retaliation for what the employer thought (even though mistakenly) was a work-related protest, it should order them reinstated with back pay. The broader lesson for workers is clear: Individually, you have neither power nor protection against arbitrary treatment on the job. Collectively, you have both power and protection. Organize!

Eric Fink is an Associate Professor at Elon University School of Law in Greensboro, North Carolina. He is also a fly-fishing enthusiast and a guitarist.