Could firing one who doesn’t seem “happy and smiling and positive” violate labor law?

Wanda with a frown

A man has filed this Charge with the National Labor Relations Board, claiming that his former employer violated the National Labor Relations Act when it fired him, allegedly, because the company didn’t think he was “happy and smiling and positive.”

What’s this all about, Eric?

Shout out to Melissa Daniels at Law360 for this article about the Charge.

In the Charge itself, the former employee articulates why he believes getting fired for his perceived inability to turn that frown upside down violates the Act.

The purpose of Section 7’s guarantees of employees having the legal right to engage in concerted activities for their mutual aid and or protection is to protect employees from an employer’s discipline or discrimination because the employee is not happy, not smiling and not positive about his or her terms and conditions of employment, and is showing it and/or communicating it to coworkers. This is entirely distinct from a limited work rule requiring employees during the course of doing their job to smile at customers while interacting with them, because such a rule does not trample upon employees’ Section 7 rights. By contrast, the facts show in the instant matter that Nagel was fired solely for not “genuinely” smiling at coworkers and supervisors. 

Several recent Board decisions have knocked employers for having overly-broad employee handbook provisions that could be construed as chilling employees from discussing working conditions with one another. The Act protects the rights of employees to talk shop — even if they do so negatively.

But, does the Act forbid firing employees that appear to have bad attitudes?

Even if the employee was fired solely for not “genuinely” smiling at coworkers and supervisors, I’m struggling with how the termination itself violates the Act.

Concerted activity requires two or more employees acting together to improve wages or working conditions. It’s one thing if two sad-sacks are discussing working conditions together. But, what’s so concerted about a single employee’s smile — whether real or, like, one of these?

So, yes, I’m calling bull on that Louis Armstrong song.

Geez! If firing an employee for having a bad attitude were unlawful, then nearly very employer in America would have violated the Act.


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