Union Election, Medical Privacy, and a Suspicious Termination
You are the HR director at a 220-employee food-processing plant in a state with a tight labor market. A union filed an election petition after 45% of employees signed authorization cards. Two days after the petition, a supervisor told a group of workers that 'the plant will close if you vote yes,' and another supervisor accessed an employee's confidential medical email to check whether the employee was 'really on FMLA' and shared the content with a shift lead. That employee had been a visible card signer and was terminated the next day for 'excessive absenteeism,' though the attendance record shows approved FMLA leave. The plant manager wants to hold mandatory 'informational' meetings, review the employee's email further, and postpone the election if possible. The election is in 21 days. You have outside labor counsel available but want an internal action plan.
1. Identify the legal exposures and the immediate actions you would take in the next 48 hours.
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Exposures:
- The 'plant will close' statement is a classic Section 8(a)(1) threat. It can set aside an election and support unfair labor practice charges.
- Accessing and sharing FMLA or medical information violates confidentiality under the FMLA and possibly the ADA or HIPAA. It also looks like surveillance of protected activity.
- Terminating a visible card signer one day after the email review, for attendance that is approved FMLA leave, creates a strong 8(a)(3) retaliation claim and a possible FMLA interference or retaliation claim.
Immediate actions: preserve all records and emails; stop any further access; notify outside labor counsel; suspend the termination pending review; separate the supervisors from election-related decisions; issue a cease-and-desist instruction; investigate who knew what and when; prepare reinstatement and back pay if the termination cannot be defended on independent, documented grounds. Do not destroy or 'clean up' files.
2. How should the company handle the terminated employee and the medical information?
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Treat the termination as presumptively unsafe until counsel completes a review. The stated reason, excessive absenteeism, is contradicted by approved FMLA leave, and the timing after protected card signing is damaging. If the leave was approved and the absence was protected, rescind the termination, restore pay and benefits, and remove the discipline from the file. If there is a genuinely independent reason, document it with evidence that predates the union activity.
For the medical information: restrict access to HR and benefits on a need-to-know basis, retrieve copies from the shift lead, document the breach, and assess notification obligations under HIPAA if the plan is covered. Discipline the supervisor consistent with policy, but do not make a public example that chills protected activity. Remediation should be prompt; delay increases back-pay and election-set-aside risk.
3. What guidance do you give the plant manager about mandatory meetings and election-period communications?
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The company may communicate its views, but it cannot threaten, promise benefits, interrogate employees about union sympathies, or create the impression of surveillance. Mandatory 'informational' meetings are legally risky if they become anti-union captive-audience sessions; with counsel, prefer voluntary meetings, written FAQs, and consistent supervisor scripts. Prohibit supervisors from predicting plant closure, loss of benefits, or other reprisals. Do not ask employees how they intend to vote or who signed cards. Do not discipline known organizers absent documented, consistent policy violations.
Do not postpone the election without a valid legal basis; a request based on the company's own misconduct is unlikely to succeed. Train supervisors now, document the training, and route all election communications through counsel. The goal is laboratory conditions, not a propaganda campaign.