• Hooters Decision Very Revealing
  • July 15, 2014 | Author: Vito A. Gagliardi
  • Law Firm: Porzio, Bromberg & Newman P.C. - Morristown Office
  • Last month, in a case pending before the National Labor Relations Board, an administrative law judge ("ALJ") ruled that a waitress fired by a Hooters franchise was entitled to reinstatement and back pay because her "discharge was motivated by her protected concerted activity" under Section 7 of the National Labor Relations Act. The waitress was fired for "negative social media posts," following her complaint that she lost a "rigged" bikini contest. (Allegedly, the victor's boyfriend was one of the judges.) While the interrelationships between the parties discussed in the opinion would be worthy of the prime time soap opera, and while the heated and profanity-laden confrontation between the waitress and the bartender after the bikini contest makes for some entertaining reading, one must consider carefully the breadth of the decision and the ALJ's determination that nine rules in the employee handbook, prohibiting such behavior as insubordination and disrespect, do not withstand scrutiny under the National Labor Relations Act. Many of the handbook provisions may seem innocuous on their face and undoubtedly are common to many employers.