Employer gets dragged into court – literally – after defying orders

What’s the worst-case scenario for an employer that refuses to provide court-ordered relief to a mistreated employee?

How about getting taken into custody by U.S. Marshals?

Does it happen a lot? No.

But is it possible? Yes, as two corporate officials for a Wisconsin employer learned firsthand on September 12.

Dragged into court: Case background

In 2021, the National Labor Relations Board determined that the Haven Salon + Spa, which operates in Muskego, Wisconsin, violated the National Labor Relations Act by terminating an employee because she raised concerns about the business’s COVID-19 safety protocols.

Raising those concerns was protected concerted activity under the act, and the employer was prohibited from retaliating against the employee for doing so.

To remedy the violation, the board ordered the employer to take the following specific steps:

• Offer to reinstate the employee
• Expunge references to the discharge from its files
• Provide records relating to back pay
• Post a notice about employee rights, and
• File a compliance certificate with the board.

The U.S. Court of Appeals for the Seventh Circuit later upheld the board’s order.

Prolonged refusal

The board said the employer did not provide all the relief that was ordered.

More specifically, the board said the employer did not tell the employee it had removed all references to the termination from its files; did not post a notice of employee rights; and did not file the required compliance certificate with the board.

The court granted the board’s motion for contempt in February of this year. The contempt order set daily fines and essentially gave the employer a week to provide the ordered relief.

In finding that the employer was in contempt, the court warned that “[p]arties ignore court orders at their peril.”

It said a contempt order was warranted here because the board showed that:

• There was a prior court order that set forth a clear command
• The employer violated the command
• The violation was significant, and
• The employer did not make a reasonable and diligent effort to comply with the order.

Apparently, even the contempt order did not get the job done.

Stepping it up

The agency said the employer still refused to fully comply, and in August it got even more serious about things by asking the court to do three things:

• Liquidate the fines
• Add two specific corporate officials as parties in contempt, and
• Issue a writ of body attachment.

That last one sounds ominous, and it is.

A writ of body attachment essentially is an order to bring a person before the court – quite literally.

In this case, the board alleged that the two corporate officials were the ones who were keeping the relief from being granted. It also presented evidence tending to show that the officials had repeatedly tried to avoid being served with the court’s earlier orders.

The court granted the board’s request. It ordered the employer to pay more than $30,000 in fines and attorneys’ fees.

‘You’re coming with us’

U.S. Marshals sprang into action, taking the officials into custody for a same-day court hearing.

That move apparently got the officials’ attention. They told a judge at the hearing that they would comply with its orders promptly.

Specifically, they committed that by the end of the week they would:

• Post proper notices, and
• Issue a letter to the employee telling her it removed any references to the termination from her file.

Are you likely to get collared by the U.S. Marshals Service in a case like this? Probably not.

Still, the case highlights the importance of knowing what is meant by “protected concerted activity” under the National Labor Relations Act.

This conduct includes:

• Talking with co-workers about wages and benefits
• Refusing to work in unsafe conditions, and
• Speaking to the employer about possible safety issues.

Remember: Under the National Labor Relations Act, employers cannot retaliate against employees because they engage in protected activity.