♫ Let It Go, Let it Go ♫ 2017-08-31T13:39:34-06:00

Posted on August 31, 2017

When most people think of employment law problems arising from the use of social media, they envision irresponsible employees taking to the internet to rant about their employer. However, a recent case out of Oregon shows that employers can cause just as much trouble as their employees when they decide to overshare online. A company that was sued by a former employee and lost is facing a new retaliation lawsuit nearly thirteen years after the employment relationship ended because its CEO decided to take up blogging. This blog, which was widely publicized on the CEO’s LinkedIn account, identified the former employee by name and lambasted what the CEO called “fake whistleblowing.” Now, a jury gets to decide whether the blog amounts to “dissemination of a negative employment reference” which would “deter a reasonable employee from engaging in protected activity.” And because this is the internet, it doesn’t matter that the CEO ultimately redacted the former employee’s name from his posts, as there likely will always be “an ‘internet presence’ associated with the material” that was published on the blog. In other words, when we’re talking about the internet, there are no take-backs.

Racist Picket Conduct Protected 2017-08-09T16:16:42-06:00

Posted on August 9, 2017

By Bill Wright

The NLRB holds – famously now – that sexist and racist conduct on a picket line is protected from adverse action unless the conduct is also violent and coercive. Despite a shot across its bow in Consolidated Communications, Inc. v. NLRB, (D.C. Cir. 2016), the Board continues to force employers to ignore sexist and racist conduct, and the courts continue to defer to the NLRB on the issue.

In Cooper Tire & Runner Co. v. NLRB, No. 1602721 (8th Cir. August 8, 2017), a picketer yelled racist comments at a van carrying strike-breaking workers. Some number of the strike breakers were African American, and the picketer yelled references to fried chicken and watermelon. When the strike and lockout ended, the company did not hire the picketer back, citing his conduct as unrelated to the picketing activity. An arbitrator found the termination to be for good cause, but the NLRB disagreed, overruled the arbitrator, and found an unfair labor practice. The court agreed with the board. The picketer had his hands in his pockets, and there was no evidence the employees in the van heard the comments or felt threatened or coerced.

The call for the NLRB to recognize public standards of employee civility, even in strike conduct, grows however. In Consolidated Communication, the criticism of the Board’s policy came in a concurring opinion. In Cooper Tire, Sr. Judge C. Arlen Beam dissented altogether. Judge Beam called for the NLRB to recognize that “the racial epithets expelled by [the picketer] were not simply tolerated, impulsive behavior. They were expressions that tended to coerce and intimidate African American employees in the exercise of rights protected under the Act.”

UPS Delivers Cautionary Tale 2017-08-08T14:56:42-06:00

Posted on August 8, 2017

By John Doran

Maximum leave policies are ubiquitous. These policies typically state that an employee who does not/cannot return from leave within a specified period (e.g. 12 months) will be discharged. Last year the EEOC issued “guidance” reminding employers that it views maximum leave policies as a violation of the ADA. Last week the EEOC settled a long-running case with UPS involving maximum leave policies. The EEOC’s lawsuit, filed in 2009, claimed that UPS’s maximum leave policy discriminated against disabled workers because it left no room for accommodation upon expiration of twelve months leave. Under the settlement, UPS agreed to pay $1.7 million to a class of workers and to create new mechanisms within the entire organization to ensure a prior legal review of any termination of an employee who has reached the end of a medical leave. Whether the EEOC is right or wrong on maximum leave policies under the ADA, it clearly litigates to enforce its position. Employers are wise to look at their leave policies to ensure they do not run afoul of the EEOC’s interpretation of the ADA.

Epic NLRB Benchslap 2017-08-07T16:36:52-06:00

Posted on August 7, 2017

By John Doran

An agreement between the UFCW and the Fred Meyer grocery store chain restricted the union’s ability to visit with store employees in public view. But things went south when the UFCW declared war on Fred Meyer. Some eight union representatives showed up at a Fred Meyer store and began disrupting business and violating the parties’ agreement on union store visits. The situation quickly escalated and three union representatives were arrested. The NLRB found that Fred Meyer unlawfully changed its policy concerning union visits during this incident, and ordered the store to make whole the three union representatives who were arrested. The D.C. Circuit flatly disagreed. Fred Meyer Stores, Inc. v. NLRB, No. 15-1135 (D.C. Cir. August 1, 2017).

The Court’s NLRB criticisms are astounding. The court described the NRLB’s decision as “more disingenuous than dispositive; it evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence—disregarding the need for reasoned decision making.” The Court sharply criticized the Board for completely ignoring facts, and pointed to the Board’s “tone deafness” to key facts. The Court concluded that “the Board’s actions in this matter are more consistent with the role of an advocate than an adjudicator.” To that, we say: “hear hear!”

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