When The Environment Has To Be Hostile To Someone

The concept behind the National Labor Relations Board’s protection of concerted activity was premised on the days of sweatshops, robber barons and Pinkertons firing into the crowds of the powerless, downtrodden employees who wanted only the ability to join together so they could amass sufficient clout to negotiate with management.  As a wobbly once asked, is that so terrible?

But then, no one could foresee when Taft met Hartley that our society would mature to the point of a victimocracy, where the law would become the bludgeon of choice for all favored rights and entitlements.  At Overlawyered, Walter Olson points out the clash:

* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer’s Law Blog; Brennan Bolt, Labor Relations Today]

* “Starbucks cannot fire a union activist employee who cursed at a manager in front of customers, the National Labor Relations Board has ruled for the second time. Joseph Agins was active in trying to unionize four Manhattan Starbucks coffee shops between 2004 and 2007.” His repeated imprecations, sometimes in the presence of customers, included “this is [BS],” “do everything your damn self,” “about damn time” when the manager arrived to help, and “go … yourself”. A protected pattern of behavior under federal labor law, the NLRB ruled. “The board ordered Starbucks to offer Agins his old job or a substantially equivalent position, compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.” [Seattle Post-Intelligencer]

In contrast to the employees’ right under the NLRA to organize and engage in concerted activity, there remains the employers’ right to manage its employees.  Employers’ prerogatives include the ability to manage its employees performance on the job.  While the terms and conditions of employment may be subject to collective bargaining, and while no one can be discharged because of their efforts to engage in concerted activity, it cannot be without limits or no business could function.

Think of it this way: What if you ordered a mocha frappucino with skim from the barista, who charged you $17.49, which you paid. But then, the barista called you an asshole and told you to get the hell out of his Starbucks because you looked like a hipster.  As it turned out, the barista was a union organizer, and felt that hipsters’ attitudes toward rank and file employee rights to engage in collective bargaining were unsupportive, and that as a result of their negativity, they undermined his efforts to engage in protected concerted activity.

The nature of concerted activity inherently conflicts with management prerogatives, and it was understood to be the case from the outset.  When the NLRA was enacted in 1935 (and amended in 1947), the trade-off was deemed necessary for the protection of employees, and the NLRB was created so that an agency with expertise in the tricky, conflicted nature of this clash of rights could determine where the line was drawn between the ability of employees to unionize and the ability of management to run a viable business.

The problem arises when the rights of one is out of whack with the rights of the other. Would Starbucks be a viable business if its baristas cursed at customers?  What if they had a union-based reason for doing so?  What if the barista doing the cursing was a labor organizer?

There are lines that no one would have thought crossable back in 1947, one of which was that employee tirades and cursing went beyond what management would be required to tolerate in the course of protected activity.  The NLRB now says, “no more.”  The nature of rights tends to flow toward extension, and have now reached the point where what was once deemed a fundamental management prerogative, that employees could not curse at their supervisors or customers on the job without recourse, is a protected activity.

Of course, it’s not as insanely ridiculous as a person who is allowed to live in someone’s home as part of their employment as a nanny, who then decides not to work and refuses to leave.  But that could never happen. In a sane workplace.

42 thoughts on “When The Environment Has To Be Hostile To Someone

  1. Pingback: NLRB: law protects employee's right to curse out boss - Overlawyered

  2. Brett Middleton

    There are lines that no one would have thought crossable back in 1947

    How about 1951? “Day of the Moron” by H. Beam Piper, in which some dangerous incompetents end up blowing up a nuclear power plant. Management tried to get rid of them but they insisted the firing was retaliation for their labor activities. Seems like Piper, at least, foresaw management prerogatives getting thrown under the bus.

    1. Frank

      Great story, and available on the net since it’s out of copyright. Piper likely did foresee this, like any good speculative fiction writer.

  3. fiver

    Of course cases seem ridiculous when only the losing side’s point of view is discussed. Write a story about an acquittal using only the prosecution’s “facts” and the jury will always seem insane.

    To take the easiest example: the nanny had legal rights as a tenant, and, instead of taking lawful steps to evict her (like giving her the requisite notice), the employer/landlord tried just calling the cops. That’s not going to work, and that shouldn’t work. Giver the tenant notice; if she doesn’t leave, file an eviction. It works just fine in literally millions of eviction proceedings every day.

    And the Starbucks employee? There seems to be a bit more to the story:

    The panel said Starbucks treated other employees more leniently for “similar or worse misconduct” in the presence of customers, and noted there was no evidence that the off-duty assistant manager who provoked Agins received any discipline for the incident. It added that Starbucks could not even say who decided to fire Agins and “presented an exaggerated version of Agins’ actions on Nov. 21,” and noted that the NLRB judge in the case credited Agins’ testimony that he never received a warning regarding the May 14 incident (meaning it couldn’t be considered in evaluating the firing).

    There were differences in testimony. The employee was believed; the employer was not. Starbucks lost. Its “facts” couldn’t withstand a hearing.

    Now it’s just sour grapes.

    1. SHG Post author

      I would be inclined to stop where you write “the nanny had legal rights as a tenant.” If you fail to see a problem there, we lack anything to discuss. She was not a tenant. She was never a tenant. She was a live-in employee, and when she ceased to be an employee, her live-in benefits ceased as well.

      As for Starbucks, the NLRB engages in an analysis that is invariably problematic: if it happened (and that isn’t denied), and it wasn’t a fabricated excuse to undermine the exercise of concerted activity, how it was addressed is the employer’s prerogative entirely. The NLRB should have nothing to say about it.

        1. SHG Post author

          It makes my head explode to think that someone could say the nanny was a tenant. Holy guacamole. Heck of a job perk.

          1. Anonsters

            From the nanny story:

            “[T]heir original agreement called for [the nanny] to provide her services in exchange for room and board.”

            Hate to break it to you, but that creates a right of tenancy in the nanny, most likely, because she’s providing services in exchange, essentially, for rent. She was fired, yes, but landlord-tenant law kicks in at some point, I’d think, meaning they have to provide her with whatever notice is required in CA for such things. Granted, this nanny, as a declared vexatious litigant, doesn’t sound all that sympathetic, but then criminal defendants never sound very sympathetic, yet they have rights.

            Stick to the criminal law, sirrah.

            1. SHG Post author

              I understand that this is may be the case under California law. That doesn’t change that it’s nuts. I don’t care that she’s a vexatious litigant (unless this was a scheme for her to get in and then exploit the situation), but that they converted an incident of employment, the license to live-in, into a tenancy, producing an insane outcome.

              Your attempt to analogize the nanny as unsympathetic like criminal defendants is idiotic. Defendants don’t get rights because we love them so much, but because the Constitution requires it. There’s nothing in the Constitution to protect the “right” of putative nanny’s to live in someone else’s home after refusing to do the job for which they were hired and allowed license to use the room.

            2. Anonsters

              And as we’ve established, I don’t see it as nuts at all. It makes sense to me that a live-in employee should receive some of the basic protections of a tenant, if their residency is basically the sum and substance of their compensation for work.

              The reason I brought up the vexatious litigant bit is that it did very much sound from the story as if she was just trying to get her foot in the door in order to exploit the situation. Which I agree is gross.

              And I agree the analogy was idiotic. Rhetorical flourishes often are. 😉

            3. SHG Post author

              It’s not nuts because it makes sense to you? No wonder you thought Fiver made a “spot-on” argument.

  4. fiver

    It makes my head explode to think that someone could say the nanny was a tenant.

    In what possible legal reality is she not a tenant? This is not even a close call.

    The admitted “facts,” told solely from the employer/landlord’s point of view (it must be nice to have a compliant buddy at the local station to make your nanny tiff national “news”), state that her tenancy was the condition, and apparently the only consideration, for her working there. She lived there; her stuff was there; if she wasn’t a tenant then what what was she? What was her address? Was she legally homeless?


    Heck of a job perk.

    Nope. Not a perk. Consideration. From what the article states, the only consideration.

    As much as landlords might hate it, tenants have rights too. As much as employers might hate it, employees have rights too.

    And as much as prosecutors might hate it, even criminally charged defendants have rights too.

    Or should we just compare net worth and do the math?

      1. Anonsters

        The funny part about this is that it’s not hard to find cases where courts adjudicate this very thing—whether live-in employment creates a tenancy.

        So far, you’ve offered nothing but airy dismissal of the very possibility of such a thing, whereas actual courts have considered it and acknowledged the possibility. One almost wishes to say, “Lord, I hope you’re not a lawyer, if this is how you go about deciding legal issues. ‘What seems reasonable to me?'” But then we like you too much to take swipes at you on your own blog. 😉

        1. SHG Post author

          The “I hope you’re not a lawyer” refers to the brilliant legal reasoning, not the outcome. Any fool can write “she’s a tenant because SHE IS, SHE IS, SHE IS.” We may disagree about the insanity of California’s laws, but neither logic nor the laws of physics change on the left coast.

          The reasoning begins with why her occupancy as an accoutrement to a nanny job should rationally be converted into a termless tenancy, independent of the justification for her occupancy. You don’t get “rights” as a tenant until you establish why you should be deemed a tenant. Saying “of course she’s a tenant” isn’t an argument. At least not to a lawyer.

          If someone wants to take a swipe at me on my own blog, they have to do a whole lot better than stamping their feet and insisting they’re right. I get that a lot around here. It’s not availing. And the burden is on the person taking the swipe to make their point. Fiver didn’t cut it. You didn’t do too well in that department either.

          It’s not your fault for not realizing what I was referring to, or offering a vapid response. You don’t know any better yet.

          1. Anonsters

            His legal reasoning was spot-on, though, which is why I genuinely don’t get the way you responded. To me, it boils down to nothing more than, “I think this is insane, so it is.” (And if you missed it, his legal reasoning was: her residency in the house was the only consideration (well, that and board) for her services as a nanny. That’s exactly why courts say there’s a tenancy, whereas if you receive other compensation—provided there’s no indication that you’re receiving reduced compensation in consideration for the room and board—they say there’s no tenancy.) Yes, it was compressed, not a full-scale IRAC-style brief, but this is a blog, and the only reason you gave in the post for rejecting the notion of live-in employment creating a tenancy was “NO WAY THAT’S CRAY-CRAY.”

            1. SHG Post author

              This could explain why you can’t get a job.

              Let’s apply some of that expensive edumacation of yours:
              Are there terms of the tenancy?

              When does it start
              When does it end
              When is rent due
              How much is the rent
              Are there any other obligations between the parties: heat, electricity, air conditioning, etc.

              The list goes on and on, and there are no answers to any of these questions because there was no tenancy contemplated or granted. Landlord tenant law exists in within contract and property law. There is nothing here that relates to any legal concepts of a tenancy, other than mere occupancy by virtue of the nanny having taken a live-in nanny position. You don’t need a IRAC brief (though a statute or a case citation would be nice if you’re going to argue it’s the law), but you still need to think like a lawyer.

              That she received no pay beyond room and board creates problem all around, but that California may consider it a tenancy doesn’t make it nuts. Being the law and being nuts are not mutually exclusive

        2. Sgt. Schultz

          Maybe our esteemed host knows who you are, and gives you enough credit that you can get away with saying something as worthless as “it’s not hard to find cases where courts adjudicate this very thing,” and then feels entitled to take a swipe.

          But as for the rest of us, some snarky douche hiding behind the name Anonsters who presumes his own credibility and brilliance, as if his say-so is more than sufficient to establish whatever he says as some universal truth, is another worthelss asswipe.

          You can make a point based on reason. You can grow a pair and use your real name. But until then, lighten up on the swipes. You haven’t earned it, have no credibility and aren’t funny. The internet is filled with asswipes. You’re just another one.

          1. SHG Post author

            Yeah, he’s a bit presumptuous and superficial, but his swipes really aren’t an issue for me, and he’s generally kinda funny. It gets be a bit annoying when somebody new shows up and starts out trying to be the snarky guy, but if Anonsters sticks around, I expect he’ll get the feel of the place and chill out a bit.

            Whether he’s a lawyer isn’t clear, but until he proves otherwise, I must assume he’s not.

            1. Anonsters

              Eh, I’m not trying to be snarky so much as generally laughing at everything, which I suppose equals snark in some instances. Not because I think I’m superior to it all, but because it’s all so grim that the only way to maintain a grip on my sanity is to laugh at it all.

              And I’m part of the Hosed Generation of JDs—tons of debt, no job prospects because I graduated in the middle of the financial crisis, just muddling through now. Although I’m thinking about taking the bar here in the Western state in which I live and trying to do PDing. Scary.

            2. SHG Post author

              This explains a lot. Kid, you will never find a job until you stop behaving like an entitled little asshole. I mean that in the nicest way.

          2. Anonsters

            You seem like a really nice, interesting person, Mr. Internet Policeman. May I subscribe to your newsletter?

            1. SHG Post author

              Some folks have been around here for a while. You’re new. Contribute no useful thought. Are too much of a coward to use your name, and think you get to screw someone else who has been here a long time?

              Now you’re just a useless baby asshole.

            2. Sgt. Schultz

              For reason that elude me, SHG find you amusing, if not illuminating. I find you neither.

              As far as I’m concerned, you’re just another self-important baby lawyer who wants to troll the grown ups. Shouldn’t you be playing with your friends at reddit and the scamblogs? I bet they miss your insights.

    1. John S.

      Thank you for pointing out Scott’s glaring bias towards prosecutors’ points of view. It’s about time someone stood up to his dictatorial, anti-defendant screeds and said “Defendants have rights too!”

      Remember to pursue a complaint with the NRLB should he remove or refuse to post any of your comments, as you are clearly a tenant of this website and he has no right to remove you as he isn’t paying you anything else.

  5. Kevin Blackwell

    From what I could find after running a few searches, it appears that California law does treat live in employees as tenants. From what I read though, an employer/landlord can commence eviction proceedings immediately once the employee is terminated. In almost all other instances, the landlord has to provide notice of 3-90 days prior to commencing an eviction proceeding.

  6. Pingback: She came to stay: nanny won't leave couple's home - Overlawyered

  7. TM

    Using the nanny theory of tenancy: my employer gives me an office to spend the better part of my life. I keep a spare suit and a toothbrush here. I spend more time here than I do at my proper domicile. Therefore, I live in my office. Meaning that, even if he were to let me go, I have rights to remain in my office until properly evicted under landlord-tenant law. Oh, he is going to love this.

    1. Anonsters

      So the only consideration you receive in exchange for doing your job is occupancy of your office and meals? Then yes, you might have a case.

      1. SHG Post author

        I’m still curious how you find a nexus, logical or otherwise, between compensation for a job being paid in room and board or money. What part of employment compensation were you taught was an integral incident of tenancy in your property class in law school?

        1. Anonsters

          What’s integral to tenancy is consideration (full stop) given in exchange for occupancy. Employment compensation is irrelevant to tenancy generally (although it’s relevant in the nanny case (stay tuned)). Among other things, consideration-for-occupancy distinguishes a tenant from a houseguest, whom you are free to boot out whenever you want, for whatever reason.

          The nanny was an employee, but her only compensation was room and board. Had she been paid money as well, the employers (the couple who hired her) could’ve argued that the room and board were not part of the consideration she received in exchange for her services, but just a perk, or a convenience for them, or whatever. But there can be no argument on that score because her only compensation was room and board.

          Now, the reason that’s relevant is that by forgoing monetary compensation—by accepting the room and board as compensation in lieu of cash payment—she was constructively paying rent. She received the right to occupy her room in exchange for something of value—here, not money, but her nanny services. Receipt of the right of occupany in exchange for something of value = rent. That’s why the distinction in how she was paid mattered. She couldn’t argue she was (constructively) paying rent if she had been receiving cash payment for her services, unless the cash payments were discounted sufficiently that it’s clear she was paying for the room and board out of her salary.

          1. SHG Post author

            This was a bit of a trick question. The argument of obvious. The logic is the problem.

            …by accepting the room and board as compensation in lieu of cash payment—she was constructively paying rent. She received the right to occupy her room in exchange for something of value—here, not money, but her nanny services.

            You still can’t see the speciousness of your argument. To the limited extent that it can be argued that she “paid rent” through services, she has a point, though the point is indistinguishable from someone getting paid a salary in addition to room and board. She’s still “paying rent” through services, since whether it’s part or all of her compensation doesn’t change the “paying rent through services” piece.

            But the occupancy lacks any of the incidents of a tenancy. There is no intent to create a property right. No term of tenancy. No conditions of tenancy. Tenancy creates a property right in the tenant, which is why eviction is necessary. Here, occupancy is an incident of employment, not tenancy. She was not invited in for the purpose of occupying a room, but to function as a nanny, with room and board as compensation for employment.

            While California may punish domestic employers by allowing employees who are paid solely by room and board to be deemed tenants, don’t confuse the decision to manufacture a tenancy as punishment as a rational legal principle. The absence of the requisite incidents of tenancy demonstrate how absurd the concept is: does the nanny get to oust the homeowners from the bathroom if she wants to use it? What about the kitchen? Does she get full run of the house to the exclusion of the homeowners? Is her tenancy just her bedroom, or all rooms, or all rooms needed for normal living, since there are no terms addressing the scope of her tenancy? Who gets precedence? Can she redecorate the kitchen, tear out the ugly wall paper and countertops? Is she entitled to set the one zone AC at 68 if that’s her preference, even though the homeowners prefer 78? If the fridge conks out, who has to fix it? Replace it? Who pays the electric? The cable TV? Can the nanny have the cable guy install TV and wifi, making holes through the walls? Can she force the owners to do so?

            These are all part of the incidents of tenancy, none of which are answered by your argument that she got occupancy in exchange for services. There is no rational basis to create a tenancy out of an employment contract. It fails. When you stop thinking backwards about this, and instead consider any incident of tenancy, you may realize how ridiculous this concept is, how it fails to comport with any rational tenancy principles and is untenable in nearly every respect. Or maybe not.

            1. Anonsters

              Because it’s USA-Belgium half-time, and I don’t have a ton of time right now to reply, I’ll just say this for now: all those questions are fair questions, and I haven’t utterly overlooked them. That it’s a complicated situation is no doubt true, and much would depend on testimony about precisely what the agreement included (as opposed to a throw-away line in a facile newspaper report representing only one of the parties’ point of view) when they apparently orally agreed to terms. As for your insistence on all the missing landlord-tenant terms (like length of tenancy, etc.) as evidence of there being no right of tenancy, all I can say is that those aren’t necessary to create the tenancy right. They’re helpful. Sophisticated parties will include them (and memorialize them in a written lease). But they’re not necessary. That’s basic 1L stuff. Courts will fill the gaps. What matters is whether the essential condition of tenancy is met, which is the exchange of a right to occupy property (a room, a house, whatever) for consideration. Insisting that you need all the other (typical) terms to form a valid lease is like saying you have to have agreed to all the gory details in order to have formed a valid contract, which is false.

              I’ll think more about your response, though, because it’s substantial, and like I said, it’s halftime (OO-SAH! OO-SAH! OO-SAH!), but I’ll ask you, in turn, to think about the situation without beginning by characterizing it as an employment agreement. I think that by starting from that, you’re inexorably led to conclude that there’s no way tenancy rights can be created by an employment contract. You’ll probably be tempted to say, “But it *is* an employment contract.” My point, rather, is just to think about it as a contract of some kind and consider what’s being exchanged. You seem to want to reject the notion of creation of property rights in the nanny because of how complicated the inquiry would then become given a variety of hypotheticals (like what happens if she hates the kitchen wallpaper, etc.) How would you characterize what the nanny is receiving in exchange for her services? Specifically, how would you characterize her occupancy of the room? Is she given the right to occupy the room in exchange for her services?

            2. SHG Post author

              Meh. I’ll reply later, but in the meantime, meh.

              Edit: I changed my mind. I’m bored with this, and you’ve got nothing here that interests me.

  8. Andrew Roth

    The outrage directed at the “nightmare nanny” in the press strikes me as awfully pat. Diane Stretton sounds like a shyster, but so do her ex-employers/quasi-landlords. The arrangement that the Bracamontes made with her sounds like an end-run around prevailing wages for domestic help, and possibly around minimum wage protections.

    IMO, Mrs. Bracamonte’s expressions of shock that she can’t evict this woman from her own house don’t help her case. She and her husband invited Stretton to stay with them on dubious terms, and it sounds like they’re now trying to privatize the upsides of this arrangement and offload the downsides. Sadly, this is exactly what I’ve come to expect of people who solicit unpaid help on Craigslist.

    I also tend to be unsympathetic to people who use in-kind payment (and under-the-table cash payment, for that matter) because these payments divert money that should be remitted as payroll deductions. This diversion is understandable, and perhaps excusable, but I certainly don’t find it admirable. I think it’s another example of the civic fabric being shredded by a thousand cuts.

    Unless the Bracamontes can show that the value of the room and board that they provided Stretton met or exceeded minimum wage for the work that she performed prior to her work stoppage, I’ll have no reason to believe that they didn’t have it coming. It’s karma from a completely unscrupulous live-in mountebank, perhaps, but it’s karma nonetheless. I’m sick of seeing all these skeevy lowballers troll Craigslist for the foolish and the desperate, and I’m sick of seeing employees who should be paid aboveboard get dragged into the gray and black markets by predatory employers taking advantage of a major economic collapse and a huge surplus labor pool. If Stretton can turn the Bracamontes into an object lesson about lowballing the help, I’m all for it. It’s cynical, but I like this option better than letting the labor market progressively degenerate into a digital-age Wild West.

    1. SHG Post author

      I agree that the Bracamontes are unsympathetic, and smell as if they were screwing the nanny out of minimum wage and other employee rights and benefits by circumventing it with payment via occupancy. But that might give rise to claims against the Bracamontes for wages, etc., not create an disconnected property right. This answer to one wrong isn’t another wrong.

      1. Andrew Roth

        What two wrongs really make in this case is work for trial attorneys. This sounds like the kind of case in which the adversaries are so angry with each other that they’ll gladly exhaust their savings to sue each other over a few hundred dollars. Based on what I’ve read, I think that if I were a juror in this case I’d award damages to both parties, with net damages going to the Bracamontes, since Stretton probably stole more from them than they did from her. These truly sound like people who deserve each other.

        I’m ambivalent about two wrongs making a right in this case. I find Stretton’s behavior absolutely pathetic, and if I were a juror I’d vote to hold her fully accountable for it, including for any claims of vexatious litigation. I don’t buy her claim of elder abuse in the slightest, although she may be crazy enough to believe it herself. That said, I think that her immoral behavior may paradoxically have a morally salutary effect on employers like the Bracamontes. A fear of being sued by crazy fridge-plundering squatters could have a deterrent effect on other employers who, left to their own devices, would screw over the help. It’s appalling, even depressing, to see how prolific scummy unpaid and quasi-paid job offers are on Craigslist. As someone who frequently uses Craigslist to look for work (I found my very satisfactory current job there), I’d really like to see the fear of the Lord put into these predators. It’s a sad thought, but I don’t think many of them will learn the lesson unless it packs some shock value, as this case does. My hope is that the Stretton-Bracamonte circus will teach some of them that those who lie down with dogs get up with fleas.

        It’s a cynical hope. I can’t object to any criticism that I get for expressing it. But I don’t see how else to get through to people of this character. These are people who have larceny in their hearts.

        1. SHG Post author

          This is really the sort of litigation you would be interested in handling? You can have my share too, then, as it holds no interest for me.

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