Don’t “Just Smile and Wave, Boys”: The Right to be Unhappy at Work

By: Allison Stapleton

You have the right to complain about how miserable your job is. A former employee has filed a complaint with the National Labor Relations Board (hereinafter “NLRB”) alleging that his employment at a Manhattan Trader Joe’s location was terminated due to the fact that he “was repeatedly reprimanded because managers judged his smile and demeanor to be insufficiently ‘genuine.’”[1] There have been similar allegations made by several employees in Trader Joe’s store locations throughout the east coast.[2] The former employee’s complaint “challenges policies that appear in the crew handbook and job bulletins . . . [o]ne of the latter required employees to maintain a ‘positive attitude.’”[3]

Pursuant to the National Labor Relations Act (hereinafter “NLRA”), individual employees have the right to engage with other employees in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[4] The NLRB describes the “protected concerted activities” of the NLRA as when two or more employees of a business attempt to address or discuss work-related issues such as pay, working conditions, or safety conditions.[5] These protections are designed to protect employees against retaliation from their employer for voicing their concerns or their dissatisfaction with their job or conditions of employment.[6] The NLRA has been interpreted to protect an employee’s right to complain to other employees as a matter of “concerted activity,” even if his complaint itself lacks merit.[7] The District of Columbia Circuit Court has further stated that the NLRA’s protection of “concerted activity” could potentially be interpreted by the NLRB to not be limited to conduct engaged with or by the authority of other employees, but stated that the court will defer to the NLRB’s interpretation, which currently limits the scope to  “concerted activities.” [8]

The complaint filed against Trader Joe’s argues that “not smiling” is an expression of the employee’s dissatisfaction with the terms and conditions of his employment to the employee’s fellow workers, and thus the act of “not smiling” falls under the “protected concerted activities” of the NLRA. [9] The complaint seeks damages for this alleged wrongful termination of his employment with the grocery chain.[10]

This is not the first allegation against Trader Joe’s for violating the “protected concerted activities” of the NLRA.[11] In 2014, Trader Joe’s settled a $5 million whistleblower lawsuit brought by a former employee who accused the grocery chain of terminating his employment “for protesting unsanitary food practices and unsafe working conditions.”[12] The instant compliant was filed with the NLRB on November 3, 2016 in New York and is pending review by the Board.[13]

[1] Noam Scheiber, At Trader Joe’s, Good Cheer May Hide Complaints, N.Y. Times (Nov. 3, 2016), http://www.nytimes.com/2016/11/04/business/at-trader-joes-good-cheer-may-hide-complaints.html?smid=tw-nytimes…yp=cur…1&_r=0.

[2]  Id.

[3]  Id.

[4] 29 U.S.C.S. § 157.

[5]  National Labor Relations Board, Employee Rights, https://www.nlrb.gov/rights-we-protect/employee-rights.

[6] National Labor Relations Board, Rights We Protect, https://www.nlrb.gov/rights-we-protect.

[7] NLRB v. Halsey W. Taylor Co., 342 F.2d 406 (6th Cir. 1965),

[8] Prill v. NLRB, 755 F.2d 941 (1985).

[9] Melissa Daniels, Ex-Trader Joe’s Worker Says He Was Fired For Not Smiling, Law 360 (Nov. 4, 2016), http://www.law360.com/articles/859900/ex-trader-joe-s-worker-says-he-was-fired-for-not-smiling.

[10] Id.

[11] Martin Bricketto, Trader Joe’s Settles With Whistleblower in Relations Suit, Law 360 (Nov. 5,  2014), http://www.law360.com/articles/593878/trader-joe-s-settles-with-whistleblower-in-retaliation-suit.

[12] Id.

[13] National Labor Relations Board, Recent Filings, https://www.nlrb.gov/news-outreach/graphs-data/recent-filings?items_per_page=20&page=3.

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