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Davis Brown Employment and Labor Law Blog

Employment Law Blog: You Can Take this Handbook and Shove It! - June 27, 2014

A recent Nation Labor Relation Board decision leaves many asking who’s the boss in a California Hooter’s Restaurant. Hooter’s advertises its services as delightfully tacky; however, the NLRB has given the staff permission to be as saucy as their wings. If upheld by the Board, this decision could undermine an employer’s ability to have written policies against insubordination.

The Decision found Hooter’s insubordination policy was too broad, along with several other policies. It stated, “insubordination to a manager or lack of respect and cooperation with fellow employees or guests [might result in discipline up to, and including immediate termination].” Finding the policy was contrary to the National Labor Relations Act, the Decision nullified Hooter’s ability to enforce it. The NLRB found the broad, undefined terms could chill employees’ rights to concerted activity for the purposes of unionizing, mutual aid, or protection. 

Specifically, in the Hooter’s case, a (non-unionized) employee was terminated after she, along with others, complained the restaurant’s annual bikini contest was rigged and otherwise unfair. The employee complained that she was forced to participate, without pay, and that the company’s marketing manager (who organized, planned, and executed the competition) was allowed to compete. That marketing manager also selected the panel of judges, which included her best friend and boyfriend. After the marketing manager placed first in the competition, the employee complained and alleged cheating. Superficially, the employee was upset about a bikini contest, but legally, she was engaged in protected actions regarding wages and working conditions. 

As a practical matter, the Decision only binds Hooter’s, but the takeaway is to review your policies, particularly those which impinge upon an employee’s ability to speak/comment/react regarding their employment. Watch for undefined or ambiguous terms. If such ambiguities are present, then define the terms or limit the policy’s reach to company goals and objectives. Stay away from limiting speech which directly relates to compensation or conditions of employment. 

Employers must have the ability to regulate employees and control insubordination. However, if the NLRB affirms this ruling or continues ruling in this way, then limiting definitions will be critical. The employee may have lost the battle of the bikini contest, but she certainly won the war before the NLRB.