Tuesday, October 27, 2015

2nd Circuit Court Finds Employee's Facebook "Like" Protected Concerted Activity


A National Labor Relations Board ("NLRB") decision from last summer made headlines when it was found that an employee who was fired after "Liking" a coworker's Facebook status amounted to a violation of Section 8(a)(1) of the National Labor Relations Act ("NLRA") and that the same employer further violated the NLRA by maintaining an over-broad Internet/Blogging policy.  Now, the Court of Appeals for the Second Circuit has affirmed the Board's decision in Three D, LLC d/b/a Triple Play Sports Bar and Grille vs. NLRB.  

As a quick rebuffer, Section 7 of the NLRA guarantees that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations ... and to engage in other concerted activities for the purpose of ... mutual aid or protection...."  Section 8(a)(1) of the NLRA protects employees' Section 7 rights by prohibiting an employer from "interefer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed in [Section 7]...."

Given the facts in the case, the 2nd Circuit also reminds us that, "[a]n employees Section 7 rights must be balanced against an employer's interest in preventing disparagement of his or her products or services and protecting the reputation of his or her business.  Accordingly, an employee's communications with the public may lose the protection of the Act if they are sufficiently disloyal or defamatory."  This was important as some of the other angry "comments" contained profanities and defamatory statements about Triple and Triple’s owners.

At issue in the case was an employee's (Vincent Spinella) "Like" of another employee's (LaFrance's) Facebook status:  "Maybe someone should do the owners of Triple Play a favor and buy it from them.  They can't even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!"; and an employee's ( Jillian Sanzone) comment stating, "I owe too.  Such an asshole."  The administrative law judge and the Board agreed that the Facebook activity in this case was "concerted" under the standard set forth in Meyers Industries, 281 NLRB 882, 887 (1986), because it involved four (4) current employees and was "part of an ongoing sequence of discussions that began in the workplace about [Triple Play's] calculation of employees' tax withholding."

After finding that Sanzone's and Spinella's Facebook activity constituted protected concerted activity, the Court stated that the only remaining question before the Board was whether that Facebook activity was so disloyal or defamatory as to lose the protection of the NLRA.  The Court find that their activity did not lose the protection of the NLRA because, applying Jefferson Standard, "the comments at issue did not even mention [Triple Play]'s products or services, must less disparage them."

The 2nd Circuit also discussed and clearly recognizes how social media is used these days in shooting down Triple Play's argument that the employees lost protection of the NLRA because the Facebook discussion took place "in the presence of customers" as the Court noted that such a holding could "lead to the undesirable result of chilling virtually all employee speech online.  Almost all Facebook posts by employees have at least some potential to be viewed by customers. ...  The Board's decision that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers accords with the reality of modern-day social media use."

Triple Play's Internet/Blogging Policy

The NLRB in very recent years has been taking aim at employers' use of policies that govern an employee's use of social media as many were found to violate Section 8(a)(1) of the NLRA.  That was exactly the case here.

A rule violates Section 8(a)(1) if it would reasonably tend to chill employees in the exercise of their Section 7 rights.  Lafayette Park Hotel, 326 NLRB 824, 825, enfd. 203 F.3d 52 (D.C. Cir. 1999).  If the rule explicitly restricts activities protected by Section 7, then it is unlawful.  NLRB v. Martin Luther Mem'l Home, Inc. d/b/a/ Lutheran Heritage Village--Livonia, 343 NLRB 646, 646 (2004).  However, if the rule does not explicitly restrict activity protected by Section 7, the violation is dependent upon a showing of one of the following:  (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights."  Id. at 647.

Triple Play's rule did not explicitly restrict the exercise of Section 7 rights, nor was it promulgated in response to union activity, nor was applied to restrict Section 7 rights.  Thus, the issue then was whether "employees would reasonably construe the language to prohibit Section 7 activity," which the Board and the Court found that it did.  The Board held that under this rule, "employees would reasonably interpret [Triple Play]'s rule as proscribing any discussions about their terms and conditions of employment deemed 'inappropriate' by [Triple Play."

EEOC Sues Dallas-Based Business for Forcing Employee to Take Extended Leave Then Firing When Exceeded Company's Leave Policy

The Equal Employment Opportunity Commission ("EEOC") filed a lawsuit last week against Dallas-based, DAP Products, alleging they violated the Americans with Disabilities Act ("ADA") when it refused to allow a capable cancer-stricken employee to return to work and subsequently fired him because of his disability.  

From the EEOC's press release on the ADA claim:
According to EEOC's lawsuit, DAP discharged the employee from his position of production operator because of his prostate cancer, a physical impairment for which he underwent surgery. After a period of leave the employee was capable of safely continuing in his job, but DAP refused to allow him to return to work, and instead forced him to take extended leave. Then, after refusing to allow the employee to return, DAP fired him for having exceeded company leave limitations.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employer to make reasonable accommodations for known disabilities. EEOC filed suit in U.S. District Court for the Northern District of Texas, Dallas Division (Equal Employment Opportunity Commission v. DAP Products, Inc., Civil Action No. 3:15-cv-3423-D) after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks back pay and compensatory and punitive damages for the victim, as well as injunctive relief.

Tuesday, October 20, 2015

NLRB Expands Definition of "Concerted" Activity Under Section 7 of NLRA

A relatively controversial decision from the National Labor Relations Board ("NLRB") recently expands the definition of the term "concerted," as that term is used in Section 7 of the National Labor Relations Act ("NLRA").

On July 29, 2015, the Board issued its decision in 200 East 81st Restaurant Corp, 36 NLRB 152 (Jul. 29, 2015), ruling that an employee who files an employment-related class action lawsuit engages in protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA), even though the employee has not previously consulted with other employees about the lawsuit. 

The charging party in the case, Marjan (Mario) Arsovski, was discharged by his employer after the employer learned of his lawsuit in the United States District Court for the Southern District of New York, on behalf of himself and other similarly situated employees, which alleged certain violations of the Fair Labor Standards Act ("FLSA").  The employer didn't offer any other non-pretextual reasons for terminating Arsovski, thus, the main issue in the case was whether Arsovski was engaged in protected concerted activity when he filed the FLSA lawsuit.  The Board found that he did engage in protected concerted activity.

What stirred controversy in the case is the fact that Arsovski, even though he filed the FLSA suit on behalf of a class of similarly situated employees who work or have worked for the Respondent over a 3-year period of time, the judge found that Arsovski filed the lawsuit without the consent of any other employees.  The meaning of the term "concerted" is "activity by two or more employees."  The Board took care to acknowledge the importance of the issue being presented in the case:

The Board has long held that the filing of a lawsuit by a group of employees is protected activity. See D. R. Horton, 357 NLRB No. 184, slip op. at 2 fn. 4 and cited cases (2012), enf. denied in part 737 F.3d 344 (5th Cir. 2013). However, the Board has never been squarely pre- sented with the question presented here: whether a single employee who files a lawsuit ostensibly on behalf of himself and other employees is engaged in protected concerted activity. We hold that he is, based on the rea- soning of two recent Board decisions. 
In applying the principles and conclusions in Meyers II, as articulated in both D. R. Horton and Murphy Oil, the Board held that the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7.  
 

Recent EEOC Settlements in Pre-Employment Exam Cases

A couple of recent settlements obtained by the Equal Employment Opportunity Commission ("EEOC") once again highlight how some pre-employment exams and inquiries run afoul of the law.  

Any pre-employment test must be related to the job and the skills necessary for doing the job  and consistent with business necessity.   The EEOC has released a Fact Sheet on employment tests and selection procedures in an effort to display its stance on pre-employment exams, but, of course, some employers still manage to (arguably) violate these laws.
On September 24, 2015, the EEOC announced a settlement of a sex and age discrimination charge with a California trucking company that required applicants to perform physical strength tests.  According to the EEOC, the physical strength tests were not reasonably related to the job duties and had an adverse effect on female and older applicants. 
In August, Target Corporation agreed to pay $2.8 million to resolve an EEOC finding that certain pre-employment tests given to exempt-level positions and administered by psychologists were discriminatory because they were not job-related or consistent with business necessity.  The EEOC found that these exams discriminated against applicants based on race, sex and disability.   Target also agreed to a number of non-monetary provisions, such as eliminating the use of the exams. 

Hat Tip: JD Supra Advisor 

Tuesday, October 6, 2015

Mother of 5 Terminated After Two Weeks Cannot Make Sex Discrimination Claim Under Title VII

Plaintiff Julie Gingras ("Gingras") is a female who maintained primary care responsibilities and duties for her five (5) children.  During the interview and hiring process for an Educator Coordinator position with the Milwaukee County Behavioral Health Division ("BHD"), Gingras discussed her child care obligations and how those obligations would affect her work schedule.  Gingras also acknowledges that prior to the time she was hired by Milwaukee County, one of the interviewers, Mary Kay Bultman ("Bultman"), knew that she was female and that she had young children.

Prior to Gingras being hired, Bultman spoke to her, via telephone, about Gingras' start date when Gingras informed Bultman that she likely would not be able to find any child care for all of her children on sch short notice and that she could not begin her employment with the defendant on the date specified.  As a result, Bultman pushed back Gingras' start date.  Gingras then told Bultman that she would begin the process of securing child care after she received a written offer of employment, which Bultman said she would try and procure from defendant's Human Resources Department.  The offer Gingras eventually received specified that Gingras' start date was July 15, 2013, that her work hours were "the AM SHIFT (8:00am-4:30pm)," and that if she had any questions about her hours, she needed to address those with her supervisor.  Gingras maintained that at no time prior to receiving this offer of employment was she informed that her days and hours would be the "AM SHIFT."  Gingras contended that the defendant encouraged flexibility regarding her work schedule and hours.

Gingras began her employment on or about July 15, 2013 and was subject to a 6-month probationary period.  Much of the opinion then describes how Gingras took off of work to care for her children and what appeared to be big communication disconnect between her and Bultman, ultimately leading to Gingras' termination on July 30, 2013, less than two (2) weeks after she began her employment, after Gingras missed an entire day of work when Bultman thought she only needed to miss the morning portion.  Bultman told Gingras that she was not "a good fit" and refused to elaborate on what they meant.  Gingras was then replaced by another female.

Title VII Sex Discrimination

The defendant argued on summary judgment that Gingras could not maintain a sex discrimination claim under Title VII because no facts existed to support the assertion that gender played any part in her termination.  The Court agreed.

As the Court notes in their discussion, though the evidence may have allowed a jury to infer that Gingras was terminated in part because of her family responsibilities, there was nothing in the record to suggest that she was fired because she was a female.  The Court took care to mention that Title Vii does not prohibit discrimination on the basis of family responsibilities alone, but rather on the basis of family responsibilities plus gender (sex plus).

The Court noted that the defendant hired Gingras fully aware that she was a female with five (5) children and reality dictated that she would have family responsibilities and that Title VII is not a "get out of work free" card for parents with young children--whether male or female.  Despite the fact Bultman may have made comments about dissatisfaction with employees taking time off per FMLA and the collective bargaining agreement, the Court concluded that these comments were about female employees taking leave as opposed to male employees.

The plaintiff also failed to present any comparators (indeed, for some unusual reason, she presented two other female employees as comparators of disparate treatment) and likewise failed in showing pretext because she was replaced by another female.

The case is Julie Gingras v. Milwaukee County, Case No. 13-CV-1368-JPS (E.D. Wis.)