Harry’s Law, At-Will Employment and Concerted Activity

The most recent episode of Harry’s Law, the terrific show starring Kathy Bates as a lawyer who also owns a shoe shop in Ohio, had an issue near and dear to my heart. The employees of the shoe shop, which is on the floor below the law office, owned by the same person as the law firm, and managed by a law firm employee, were outraged about working conditions.

The law firm employee managing the shoe shop, who replaced a much beloved manager, changed the rules. Suddenly employees felt like they were in prison. They were micromanaged, with every move tracked. Their clothing was inspected, hours tracked to the minute, and got no breaks.

After the employees complained to the boss’s boss, they were all called into a conference room for a meeting. They expressed their grievances and the manager fired them all for complaining. In comes our hero, who is always a fighter for the underdog. Harry stands up . . . for the manager. She says the manager can fire them for any reason.

Harry is wrong. While Ohio, like every state in the union but Montana, is an at-will state, meaning employees can be fired for any reason or no reason at all, employees do have some rights. The right to get together to complain about working conditions is one of them.

I’m not saying this sounds familiar, but . . . check out this case where 14 employees (I represent 8 of them) were fired for wearing the color orange. They were fired because their boss thought it was a protest over, you guessed it, working conditions.

The National Labor Relations Act (NLRA), which applies to most workplaces, not just unionized ones, says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Even if an employee didn’t engage in concerted activity, they are protected under the NLRA. An employer who fires them for suspicion of engaging in concerted activity is in violation of the law. The NLRB said in one case: “The discharge of 4 employees . . .because of [the employer’s] belief, albeit mistaken, that the[y] had engaged in protected concerted activities is an unfair labor practice which goes to the very heart of the Act”

Some folks who know the NLRA may nitpick me and say the store probably doesn’t make enough money to be covered under that law. Retailers must have gross annual receipts of $500,000 or more. However, because the store is part of an integrated enterprise, that is, the same owners and management as the law firm, I’d argue you have to include the law firm’s revenues, which we know are well over that (Harry win’s some big cases). Plus, for law firms the threshold is only $250,000/year.

If one employee had complained about their own working conditions, they wouldn’t be protected. But complaining on behalf of at least two employees is protected under NLRA. The supervisor broke the law by firing them.

I hope we’ll see the employees fight back in the story. Sending the message that employees can be fired for complaining about working conditions is wrong.

Harry’s Law: Is Advocating For Jury Nullification a Crime?

When I watched the season premiere of Harry’s Law, “Hosanna Roseana,” I was skeptical. The evil prosecutor, played by the wonderful Jean Smart, decided our hero, Harriet (the excellent Kathy Bates) was too formidable an opponent. Harry had previously advocated in the courtroom for jury nullification, that is, the concept that a jury should ignore a law it doesn’t like and refuse to apply it to the case at hand. A jury, of course, is sworn to uphold the law. It’s a controversial subject.

SPOILER ALERT! Don't read if you haven't seen the episode.

The prosecutor had Harry arrested for jury tampering. She said that advocating for jury nullification is illegal. I’m thinking, what a crock! Free speech and blah-di-blah. But I was wrong. There have been people actually prosecuted for advocating jury nullification. 

In the most famous recent case, a professor was handing out pamphlets on the courthouse steps to prospective jurors as they walked into the courthouse, telling them they have the right to jury nullification. This peeved the prosecutors who think juries should uphold the law even if they think it is stupid, or that it would be unjust to apply the law in a particular case. So they slapped the professor in handcuffs. He was convicted and the appeals have commenced.

Other jury nullification advocates have been prosecuted for jury tampering. Courts in Alaska and Wisconsin have found that handing pamphlets to jurors is not protected free speech. In Florida, an injunction against pamphleteers was upheld.

Now, let’s go back to Harry’s Law and whether an attorney who advocates for nullification in the courtroom in front of the judge and jury can be convicted of jury tampering. The answer is, probably not. The federal law says, “Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member” commits jury tampering. But the tampering laws generally apply to conduct outside the courtroom and outside the scope of the trial. If the lawyer for the defendant advocates nullification, the judge can hold the lawyer in contempt, instruct the jury to ignore the comments, or even declare a mistrial. But it’s unlikely that the lawyer would be charged with a crime. And the writers got this right too, because in the second episode the judge reamed the prosecutor for having Harry arrested and told her to cut it out.

Getting cutting-edge issues right is one of the reasons why I enjoy watching Harry’s Law. Season 2 is, at least so far, safe for lawyers to watch. Kudos to the writers who did their research.