He is an “at will” employee and the company believed his words hurt the company. He wasn’t looking for a legal remedy for what he was saying, it was just an opinion. If he felt what was going on was illegal, he would have tried to correct the situation through the justice system. He didn’t, he wrote an opinion piece. From what I’ve read, he didn’t cite any statutes or legal precedent. Besides, they don’t really need a reason to fire him other than to say he was no longer needed.
None of that is really relevant.
Can you please explain why these statements are not relevant?
It doesn’t matter if his employment was “at will” if he was terminated for an unlawful reason. Here, he’s alleging that the reason was unlawful – that he was terminated for drafting the memo (and possibly for having filed a charge with the NLRB prior to his termination) and that the memo was concerted activity and protected by the NLRA.
Essentially, he’s claiming (1) that the memo was written on behalf of himself and other employees to advance their terms and conditions of employment and (2) that it was not written in a way that would cause it to lose its protection under the NLRA… I think he has a difficult case to make, especially since we’re seeing a new Board and soon a new General Counsel that will likely not view these matters in the same way that they were treated under the Obama administration. But his presumptive at will status has no bearing on that analysis.
Similarly, for concerted conduct to be protected under the NLRA, the employee does not have to be seeking a legal remedy or alleging unlawful conduct. This is not like a whistleblower claim. Generally, he only has to be work with other employees or on their behalf to advance working conditions, so long as he doesn’t go about it in a way that would cause it to lose its protected nature…
