Will the Chick-fil-A YouTube firing pass legal muster?
Wow! This story has it all
.
Bullying!
Chick-fil-A!
Social media!
Was this guy's YouTube post "protected concerted activity"? You decide.
Adam Smith (no relation to that "invisible hand" guy), chief financial officer of biotech company Vante, went to a drive-through at a Tucson Chick-fil-A on Wednesday morning, ordered a free water, confronted the drive-through girl* about Chick-fil-A's "hateful" attitude . . . and recorded the confrontation for all posterity on his cell phone.
*Sorry to be calling her a girl, but she looked pretty young to me. So does everybody, now that I think about it.
Then Mr. Smith posted the confrontation on YouTube, apparently not realizing that he was advertising to millions of viewers that he was a . . . well, kind of a jerk. Even viewers who were not sympathetic to Dan Cathy's views on same-sex marriage thought Mr. Smith was a . . . well, kind of a jerk.
(Here's a link to the video.)
Meanwhile, the Chick-fil-A drive-through girl managed to be courteous throughout her ordeal and gained the admiration of all.
Within 24 hours, Mr. Smith was "no longer an employee with" Vante. They didn't even "wish him the best in his future endeavors." Boy, they must have been mad!
So . . . it seems almost beyond dispute that Vante fired Mr. Smith (or forced him to resign) based on his YouTube post.
Think fast: Has Vante violated the National Labor Relations Act, applying the nebulous standards we've reviewed on this blog in previous posts?
ANSWER: Not even Lafe Solomon himself should have a problem with this one. Mr. Smith's activity had nothing to do with "terms and conditions of his employment." Nor was he acting on behalf of a group of employees, or preparing for group action. Vante's press release made clear that its employees have a right to express their opinions but are expected "to behave in a manner commensurate with their position" and to be respectful and civil.
I don't think Mr. Smith has a chicken leg to stand on. Not even a wing.
UPDATE AND HEAD SLAP: Thanks very much to the readers who pointed out that there would be no protected concerted activity issue with Mr. Smith anyway, because he was a member of management. Just one more reason his termination is probably going to stand.
NEW UPDATE: Adam Smith has offered a seven-plus-minute apology video.
Comments (4)
Read through and enter the discussion by using the form at the endJoe - August 3, 2012 10:40 AM
Um, you should have thought even quicker. Mr. Smith is a MANAGEMENT employee and thus not even protected by Chapter 7 of the NLRA.
Tim Colling - August 3, 2012 10:59 AM
I'm no labor lawyer so I don't know what the correct labor law answer is. This fellow acted like a jerk to the poor restaurant employee and she did a great job of remaining civil toward him. If I were the president of his company, would I fire him? I don't know. What he did could make the company look bad IF it were clear that he worked for the company, but I can't tell from the video clip whether or not that was the case.
Here's what I can say for sure: anytime that Chic Fil-A employee wants a job, she can apply with my company. I need people like her who can handle that sort of customer and maintain such grace and poise. What a great example of what HER company stands for in how they treat all members of the public.
Robin E. Shea - August 6, 2012 10:08 AM
Joe, ya got me! Thanks for pointing this out. I have made an update and correction.
Robin E. Shea - August 6, 2012 10:15 AM
Tim, thanks for commenting. I'm not sure I would have fired him, either. My initial reaction was "what a jerk," but it didn't occur to me that he had committed a termination offense. There may have been other issues with this guy, but of course I don't know that. He has since offered a seven-minute video apology, which I'll add to the post with a link.
I think the clamor for his termination came from people who had viewed his video on YouTube. Some folks (I believe) found his name and employer, and then they started bombing the employer with emails and calls.
I agree with you about Rachel, the Chick-fil-A employee -- she was a lot more gracious than I would have been and is a great representative of that company.