The case is NLRB v. Acosta, decided on August 31. Early in his employment at Long Island Association for AIDS Care, Acosta had time management problems, and he even objected to completing a remedial time log, expressing his displeasure by "enter[ing] the ingredients of his lunch into his time log '80 percent to help himself'' with an eating disorder and '20 percent' to be 'snippy with his supervisor.'" I am not sure why the Court of Appeals emphasizes this incident in the opinion, but it sure is memorable. Anyway, Acosta's performance later improved. At some point, the local newspaper reported that the company's CEO had misappropriated public funds intended for employees. At some point, the company had everyone sign a confidentiality statement that precluded them from discussing wages. They also could not talk with the media. When Acosta signed it "under duress," he was fired on the spot.
Acosta filed his charge with the National Labor Relations Board, which found in his favor "because 'an employer unlawfully intrudes into its employees’ Section 7 rights when it prohibits employees, without justification, from discussing among themselves their wages and other terms and conditions of employment.'” Not only had Acosta discussed wages with co-workers, but his comments were protected because the confidentiality statement was facially invalid. The ALJ ordered management to reinstate and compensate Acosta.
The Court of Appeals (Newman, Leval and Pooler) affirms the NLRB. Here is the reasoning:
We hold that the NLRB was correct in deciding that an employer violates Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), when an employer terminates an employee for refusing to agree to an unlawful confidentiality agreement. An employer may not require even one individual employee to agree to abide by unlawful restrictions as a condition of employment. That the employees have not yet organized in order to protest the unlawful nature of the restriction at issue does not make it any less unlawful. The contrary rule urged by LIAAC, that an employee can be required to comply with an unlawful policy and the employee is only protected from the unlawful policy if he or she actively organizes with other employees against it, is illogical and untenable. An unchallenged unlawful document can cause the chilling effect that Section 8(a)(1) seeks to prevent just as much as one that has been challenged by concerted action.Since the confidentiality statement was illegal and Acosta was fired for protesting it, his termination was unlawful. While the employer said the real reason for Acosta's termination was his poor job performance, the NLRB found -- and the Second Circuit affirms -- that job performance was not the real reason. Here, the Court of Appeals provides some useful pretext analysis for plaintiffs' lawyers handling Title VII cases. Acosta's job performance had improved over time, and on the day of his termination, he met with a supervisor to discuss "future events that Acosta would be participating in at LIAAC, "thus suggesting that [the supervisor] did not believe Acosta would be fired later that day based on his performance." And, at the final meeting, the supervisor told Acosta "that he had improved." On this evidence, the NLRB had an evidentiary basis to find that Acosta's job performance was not the real reason for his termination.