Friday, February 4, 2011

Did Aspen Ski Company Break Federal Law by Firing Lee Mulcahy?

HuffPo Denver reports, 

The Aspen Ski Company has fired an employee who protested the wages that the company paid beginning ski instructors.

Lee Mulcahy was surprised on Monday to learn that he had been fired by Aspen Ski Company. The Aspen Times reported the news on Monday, quoting a statement from Aspen Ski Company's CEO asserting that Mulcahy "no longer meets the standards required to be a ski pro with the Ski and Snowboard Schools of Aspen."

The veteran ski instructor began circulating petitions and writing op-eds last year complaining of the low wages paid to beginning ski and snowboard instructors.
The National Labor Relations Act provides protection for most employees* under what is called "the preemptive strike theory." That theory, found under Section 7 of the NLRA, holds that employees (even those who do not yet have a union) are allowed to engage in certain protected activities to improve working conditions such as wages. What are protected activities? The NLRB website outlines them as follows,
a) 2 or more employees addressing their employer about improving their working conditions and pay;

b) 1 employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;

c) 2 or more employees discussing pay or other work-related issues with each other.
Employers are prevented from interfering with the exercise of these rights under section 8(a)(1) of the NLRA. There is a long line of precedent from the National Labor Relations Board which holds that restrictions on wage discussions are a violation of 8(a)(1). In a recently decided case the NLRB held that,
It follows that an employer... violates Section 8(a)(1) by simply terminating the employee in order to be certain that she does not exercise her Section 7 rights, for example, by discussing wages with coworkers. Indeed the Board has often held that an employer violates the Act when it acts to prevent future protected activity.
Based on the thumbnail sketch of the facts provided by HuffPo I'd say Mr. Mulcahy should contact the Denver NLRB office and hire himself a lawyer.

*independent contractors are not covered by the NLRA, so if Aspen Ski Company hires their instructors as independent contractors Mr. Mulcahy could possibly be excluded. But the hiring of employees as independent contractors in order to dodge taxes and avoid the NLRA is a hot-button issue in and of itself.

No comments: