NLRB’s “Biggest Idiot” Test Benchslapped

By John Doran The NLRB analyzes employer policies to see if the policies “chill” employees’ rights to engage in concerted protected activity under the NLRA. The NLRB says it applies a “reasonable person” test, which asks “would a reasonable person construe the policy to restrict protected activity?” But the current NLRB actually applies what we […]

Respond to Employee Restraining Orders

By Bill Wright An employer will face a trial on whether it negligently supervised an employee’s co-worker.  The two workers had a relationship that ended when the man sexually assaulted the woman in her home.  After trips to the emergency room and the police (resulting in a criminal assault charge for the man), the employee […]

It’s Reasonable to Employ Marijuana Users

By Bill Wright A requested accommodation for a disability is not unreasonable as a matter of law just because it is illegal under federal law, says the Massachusetts Supreme Judicial Court in a recent case.  As applied there, the result is that an employer had to engage in an interactive process with the employee to […]

Grudges Are Forever

By Bill Wright Even a gap of five years between protected conduct and an adverse action isn’t enough to show the two are not connected.  In Baines v. Walgreen Co., No. 16-3335 (7th Cir. July 12, 2017), the plaintiff had worked for the employer in 2009 and, back then, had filed several EEOC charges.  In […]

Disparagement Doesn’t Require Malice

By Patrick Scully The NLRB recently has upheld some of the most outrageous employee conduct because it viewed the conduct to be part and parcel of “protected, concerted activity”. An egregious example of this trend was the NLRB’s finding that a number of Jimmy John’s employees were improperly discharged for publicly disparaging the company’s product. Specifically, […]