The O'Melveny & Myers 'Witch Hunt': Some Answers from an Employment Law Professor
Earlier 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:
MESSAGE FROM PROFESSOR PAUL M. SECUNDA
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!
Cheers,
Paul
Paul M. Secunda
Jessie D. Puckett, Jr., Lecturer and
Assistant Professor of Law
University of Mississippi School of Law
Workplace Prof Blog: http://lawprofessors.typepad.com/laborprof_blog/
Earlier: O'Melveny & Myers Launches 'Witch Hunt' for ATL Tipsters?
(28) Comments
I wish I was FIRST out of the office on a Saturday.
meow
Very interesting. Thanks, Professor Secunda.
Guys at my high school used to disparage their firms on ATL and get fired all the time, it was no big deal.
Well that settles that.
Great answer! (and a pretty good one for gossips it seems as well, so long as we are acting out of beneficence for our fellow associates).
Thanks for the response, professor.
I left my wallet in El Secunda.
so...if i start a group blog with a couple of lawyers from work, discussing the bad conditions at work, blogging only from home, NLRA applies?
Lat, why does it take so long to post a message? Are you tracking me?
Are you ready? Hell yes! Damn right!
Hotty toddy, gosh almighty,
Who in the hell is he?
Hey, flim flam, bim bam,
Workplace Prof by damn!
I like gossip as much (or more) than the next guy, but enough already. This obsession with OMM is spiteful and tacky. Grow up and find something else to write about already -- you're losing your credibility, Lat.
9:49, since the professor went to the trouble of writing up a response, it was completely appropriate for Lat to post it.
If you don't like the OMM coverage, don't read it. The firm logo helpfully appears at the top of all the OMM posts to warn you off.
Losing credibility? Are you serious, 9:49? This is a friggin' "legal tabloid."
The O'Melveny coverage on ATL has barely scratched the surface.
Keep digging, Lat. You will be rewarded.
Thank you, Prof. Secunda!
February 9, 2008 10:31 PM:
Don't beat arround the bush--send ALT the memo(s) or don't.
That's not a question, Professor.
9:49 - "spiteful and tacky"? are you actually serious? what spite are you referring to? i think these kind of actions by a law firm are definitely worth talking about and making such information available to the legal community is a good thing. if a firm is behaving itself, it has nothing to worry about.
Sure 9:49 is serious--seriously working for OMM in some capacity. Don't people learn from the Nixon Peabody debacle? 10:31 is right--keep digging.
This whole O'Melveny "witch hunt" is the most made-up crock of b.s. I've ever heard of. No way is O'Melveny bothering to "track" who is posting on abovethelaw. Not only is it unlikely to be technically feasible unless they monitor all postings in real time somehow (and even then, the odds are against actually catching someone), it would also be a huge waste of their IT department's time and resources to try to catch a few disgruntled soon-to-be-former employees in the act.
Lat, given your sterling academic credentials, I'm sure you have enough sense to know that this story, which seems to be miraculously resuscitated every couple of days for no apparent reason, is a joke. Did some partner from OMM run over your cat or something?
Hey, I'm all for piling on when a firm screws up or does something horrible, but give me a break.
9:36 = OMM marketing dept.
I don't mean to doubt the professor's real world knowledge here, but the last time I checked, the employee in question would be classified as an employee-at-will. This means they can be fired at any time with or without cause.
If the employee wrote the e-mail on work time, the firm can fire him for violating the firm's rules regarding internet usage. Even if the employee wrote the e-mail from home, as soon as the firm has figured out who it is, they'll either make up an excuse to fire him or her or provide no reason at all (b/c they don't have to give a reason).
Long story short, if the firm wants to axe the employee...it will be easy for them to do so.
An at-will employee can be fired for a good reason, a bad reason, or for no reason at all, except an illegal reason. Firing an employee at will for violation of Section 7 of the NLRA would be an illegal reason. However, I am pretty certain this is not concerted activity pursuant to organization. No one is hoping that the lawyers who post on ATL are doing so to collectively improve their working conditions. I have trouble with the part of the argument that glosses over this as "collective activity"
Lat,
An inside source has told me that OMM has begun to kidnap and eat newborn children. Can we get a cover story on that?
9:31 - That's not new; OMM has been doing that for years. They call the children "associates."
Let's not forget that an associate who assigns and directs legal assistants and/or paralegals (as well as likely participating in hiring, firing, and discipline decisions) is probably a "supervisor" under the NLRA and thus not entitled to its protections.
Junior associates don't supervise anybody. Not even their own secretaries. So, NLRA applies...
I wish reality were so pretty. It's nice to know what they think in the ivory tower, but as anyone who has dealt with such a dispute knows, ain't gonna happen. There's quite a distance between "should" and "will."
Imagine the jury. I mean, Sure: there's a legal argument, but who will be the "peers" deciding the, ahem, "facts"?
To give you some perspective, I've been at Large Law Firm for far more than a decade and in my experience such legal arguments have about as much traction with 'real' people as you might have understanding when explaining the function and operation of a quadratic equation.
When a mechanic sees an attorney, he won't believe "union member." When a seamstress sees an attorney, she sees a suit, not denim.
Maybe secretaries are different, but that's just wishful thinking.
Seriously, this is just law student pedantry. It's time that this associate give up the childish notion that everyone will obey the law.
Go ahead, sue the law firm, you moron.