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The O’Melveny & Myers ‘Witch Hunt': Some Answers from an Employment Law Professor

O'Melveny Myers LLP logo Above the Law blog.jpgEarlier this month, we passed along a rumor that O’Melveny & Myers was conducting a “witch hunt” for ATL tipsters and commenters. For the record, OMM has denied the rumor (not to us, but at internal meetings).
Back in our prior post, we tossed out this hypothetical:

You’re a lawyer at a major law firm. You provide negative information about your employer to ATL and/or post a comment on ATL (or a similar message board), complaining about the terms and conditions of your employment (e.g., salaries, bonuses, fringe benefits). Your employer finds out what you did, and promptly fires you.

You’re a lawyer — a well-educated, highly-paid professional ($160K+). You are not a member of a union; your office doesn’t have one.

You want to sue your former firm for firing you. Do you have any claim that your conduct was collective activity protected under the NLRA? Might you have any other cause of action, under federal or state law?

We concluded: “Maybe our friends at Workplace Prof Blog can enlighten us?”
And enlighten us they have. One of the blog’s editors, Professor Paul Secunda, kindly sent us a wonderfully detailed analysis. After all the conflicting opinions in the hundreds of comments to our post, it was nice to receive some clarity.
Read Professor Secunda’s response, the model answer to our law school exam hypothetical, after the jump.

Professor Secunda’s message appears below. He sent it to us within a few hours of our original post. Unfortunately, it got lost in the torrent of email that we receive around here (not unlike many other messages; also, some get caught in our spam filter).
But better late than never. Here it is:
Just saw you asked for advice.
The answer under the NLRA is not based on whether one is in a union or not – Section 7 rights under the NLRA protect all workers to engage in protected concerted activity. The issue, as I see it, is whether the associate in question was acting in a “concerted manner.” If the person can claim that they were acting on behalf of other associates when sending the email to ATL, they might be able to prevail under the City Disposal line of cases.
That being said, there is also an issue about whether the activity is “protected.” To be protected, the activity has to be for lawful ends and by lawful means. Because the subject of the email concerns terms and conditions of employment, I don’t think lawful ends is a problem. On the other hand, under the Jefferson Standard test, an employee cannot be disloyal to an employer in a way that has nothing to do with the terms and conditions being debated. Again, this seems to be clearly about conditions of employment, so I don’t think this would be considered disloyal in an unprotected way.
So what does protection under the NLRA get ya? If an unfair labor practice is found under Section 8(a)(1), the remedy would most likely be reinstatement and backpay if the employee is fired. A cease and desist order against OMM would also likely issue.
As far as other actions, it depends if the email was sent from a home computer. New York has something called an off-duty conduct statute which might protect lawful, off-duty, recreational behavior. On the other hand, if the email was sent from a company computer, it might be seen as on-duty, and there would likely be no privacy protection (under a tort of invasion of privacy) if the law firm has properly taken away any legitimate expectation of privacy from the employee.
Hope this helps!
Paul M. Secunda
Jessie D. Puckett, Jr., Lecturer and
Assistant Professor of Law
University of Mississippi School of Law
Workplace Prof Blog:

Earlier: O’Melveny & Myers Launches ‘Witch Hunt’ for ATL Tipsters?

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