Dive Brief:

• A Michigan Burger King franchisee violated the National Labor Relations Act (NLRA) when it used its anti-loitering and anti-soliciting policies to discipline employees discussing a strike in its parking lot, the National Labor Relations Board (NLRB) has ruled (EYM King of Michigan, LLC dba Burger King and Michigan Workers Organizing Committee, 366 NLRB 156 (Aug. 15, 2018)).
• The two employees, Claudette Wilson and Romell Frazier, were active members of the Michigan Workers Organizing Committee, and involved in campaigns advocating for a $15 an hour minimum wage for fast food workers. Wilson was disciplined after the restaurant's general manager discovered that, while off-duty, she was sitting in a car in the parking lot, having another employee fill out a wage questionnaire. The manager cited the employer's rules that off-duty employees could not visit with working employees and that soliciting inside or outside the company’s premises was prohibited. And shortly thereafter, Frazier was threatened with termination when he was overheard discussing strikes.
• The Michigan Workers Organizing Committee filed the initial charge and the Board affirmed an administrative law judge’s finding that the employer violated the NLRA by interfering with the workers' rights to concerted activity. The Board also rejected Burger King’s argument that the parking lot fell under an exception allowing employers to ban employee solicitation on the selling floor.

Dive Insight:

Concerted activity — from working together to improve working conditions to formal unionization — is protected by federal law. 

Earlier this year in Lowe’s Home Centers, LLC and Amber Frare, the NLRB determined that a Lowe's policy forbidding workers from discussing pay was unlawful. Employee discussions about wages are “the grist on which concerted activity feeds,” the judge said, noting that the Board has consistently held that rules which prohibit employees from discussing wages are unlawful.

However, the law does allow retail establishments to ban employee solicitation on the selling floor and in adjacent aisles and corridors because active solicitation in a sales area could disrupt business. But the ban cannot be extended beyond the portion of the store which is used for selling purposes. Here, Burger King argued that the parking lot was a selling area because customers must drive through the parking lot to get to the drive-through window. The Board disagreed, noting that, in a case involving Sam’s Club, it had previously declined to find that a parking lot is a selling area.