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CHICAGO — Employers can still send unruly or insubordinate employees home as part of the disciplinary process. But after a recent decision by Chicago's federal appeals court in support of the National Labor Relations Board, they may want to take a look at how supervisors carry out employee discipline, how they communicate the terms of that discipline, and make sure employees clearly understand if they've been fired or they're still expected back on the job at some point.

Griselda Barrera complained to the NLRB after she said her former employer, Staffing Network, unlawfully terminated her after she and several coworkers protested in support of a coworker who was sent home for substandard performance. A supervisor allegedly threatened Barrera and her colleagues with termination if they continued to support their colleague, who had been sent home. The supervisor then allegedly also sent Barrera home, allegedly causing Barrera to believe she had been fired.

“[Barrera] was told by the employer not to return to work the next day after being sent home,” said Erin Fowler, an attorney at the Chicago firm of Franczek Radelet.

“In this case, there seems to have been some miscommunication at the time the employee was sent home about whether she should return the next day,” Fowler said. “If the supervisor instead made it clear to the employee at the time she was being sent home that she was expected back the next day or at her next scheduled shift, this miscommunication would not have taken place.”

When Barrera filed an unemployment compensation claim, the employer challenged it, saying they believed Barrera had quit her job. The company’s indication to the unemployment agency that Barrera was involuntarily separated from the organization was enough for the NLRB to find - and the U.S. Seventh Circuit Court of Appeals to affirm - Barrera’s termination violated the National Labor Relations Act. 

“The issue the employer ran into here was that the employer disciplined the employee for her participation in protected, concerted activity,” Fowler said. “After unlawfully disciplining the employee by sending her home, [the employer] affirmatively told the employee not to return to work. The employee did not simply choose not to return to work.”

Given the employee was engaged in protected activity, the employer should not have disciplined the employee for this conduct, Fowler said. Employers must make sure to train supervisors on how to appropriately listen to and address concerns raised by employees. Additionally, employers must ensure they communicate clearly with employees regarding any discipline they are receiving.

“The big takeaway in this case is in the employer’s response to the employees’ protected, concerted activity and their concerns in general,” Fowler said. “The supervisor here really dropped the ball. Instead of engaging with employees to hear their concerns and dialogue with them to resolve their concerns, the supervisor went straight to threats of discipline and the eventual discharge of the employee.”

While the Seventh Circuit and NLRB sided with the employee in this case, employers who send an employee home for legitimate reasons likely don’t need to be concerned about the court’s decision in this case, Fowler said.

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