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Hispanics United of Buffalo-
The NLRB Goes Online!
by John Douglas
A little known feature of the federal law governing labor
relations in the private sector - the National
Labor Relations Act (NLRA) - is the right of even non-unionized employees
to engage in so-called "protected concerted" activity. Non-union employers
can be and often are caught in the trap arising from this right unawares.
If one non-union employee gets fed up with his or her
working conditions and walks off the job, that employee generally can be, and
often is, fired without legal consequence. However, if two, three, or more
employees decide over lunch in a break room in the same workplace that they
have had enough of their supervisor's abuse, walk off their jobs, and file an
unfair labor practice charge with their local NLRB office, the result will
almost certainly be different. Not only will the group probably get free legal
representation all the way to the U.S. Supreme Court if necessary - they almost
certainly will get their jobs back with back pay for any period they are
Why is this? It comes down to the "concerted"
nature of their activity. When employees act in concert, rather than
alone, subject to a few limited exceptions, the NLRA generally protects them
from reprisal for their concerted action. Thus, employers that take adverse
action against employees who have been acting in concert to protest or air
grievances related to their working conditions basically do so at their own
This is the legal principle in action in an NLRB
administrative law judge's September
2, 2011 decision involving Facebook postings by certain employees of
Hispanics United of Buffalo (HUB).
In Hispanics United of Buffalo, one employee asked
a number of colleagues from work - who also happened to be Facebook friends -
what they thought about a comment by another colleague who had disparaged their
work productivity. A lively discussion peppered with obscenities ensued. When
the alleged disparager brought the conversation thread to the attention of
their supervisor, four commenting employees and the employee who had posed the
original question were let go. The stated rationale: the five had engaged in
"harassment" of the employee who had complained regarding their productivity.
Not so, Judge Arthur Amchan, an NLRB administrative law
In discussing the complaints that had been leveled
against them, the five were engaged in "concerted" activity protected under the
NLRA, Judge Amchan found. "The discriminatees herein were taking a first step
towards taking group action to defend themselves against the accusations they
could reasonably believe [their colleague] was going to make to management. By
discharging the discriminatees on October 12, Respondent prevented them by [sic]
taking any further group action vis-a-vis [their colleague's]
criticisms." Nor, Judge Amchan found, did any of the exceptions to the rule
that might cause the employees' speech to lose its protection apply.
The Facebook posts were not made at work and not made
during working hours. Moreover, despite at least some of the employees' use of
obscenity, Judge Amchan found, there were no "outbursts" "so opprobrious as to
lose protection under the Act." Finally, after reviewing the employer's
anti-harassment policies, Judge Amchan concluded there was simply no harassment
occurring since none of the posts had any nexus to any characteristic
identified as protected under those policies like sex or race. As a result, HUB
has been ordered to reinstate the five workers with back pay.
Hispanics United of Buffalo
echoes the result of another recent NLRB case involving Facebook postings that
American Medical Response settled after the agency issued a complaint alleging
that it unlawfully fired an employee who posted complaints about an AMR
supervisor on a Facebook page. Although HUB has a right of appeal to the NLRB,
the federal Court of Appeal, and the United States Supreme Court if it so
desires, the outcome of the case is not really that surprising.
In general, the law in this area is rather
employee-friendly. Although under certain limited circumstances
"concerted" activity can lose its protection, by and large the cases
that find that employee speech has been so intemperate or disloyal as to go
over the line and lose its protection under the NLRA involve speech that is
either somehow threatening or unquestionably defamatory.
This is not to say that the loss of protection cannot
happen, but the prudent employer considering discipline of employees in such
circumstances will always consult with their legal counsel before proceeding.
Similarly, the increasing number of employers who now make it a practice to
seek out and review Facebook or other Internet postings by employees or
applicants should tread with caution. Although the Fair Credit Reporting Act,
the principal federal law governing employer background checking, generally
does not apply to checks conducted internally by an employer's own staff, some
states - including California - have laws that apply even to employers' checking
of publicly available records that concern "an arrest, indictment, conviction,
civil judicial action, tax lien, or outstanding judgment." Depending on what
you actually find on an applicant's or employee's Facebook page, such state law
requirements could at least arguably come into play.
EEOC Highlights Legal Risks Posed by
Inflexible Job Requirement and Leave Policies
by Jeremy C. Wooden
The EEOC has recently highlighted the significant legal
risks that arise from an employer's inflexible, one-size-fits-all application
of certain employment policies. The EEOC has singled out two types of
employment policies that are likely to draw its attention: (1) uniform job
qualification requirements that permit no exceptions for applicants "regarded
as" disabled, and (2) leave policies containing inflexible cut-off dates.
Uniform Job Qualification Requirements Must
Be Relevant to Performance
Speaking recently at the 2011 Technical Assistance
Seminar, EEOC Legal Counsel Peggy Mastroianni warned employers that, in the
wake of the ADA Amendments Act (ADAAA), the EEOC will apply heightened scrutiny
to uniform job requirement policies that exclude applicants based on
impairments. The ADAAA makes it easier for an applicant to qualify for ADA
coverage if he/she is "regarded as" disabled. Prior to the ADAAA, an employer
may not have had to defend a no exceptions policy because an affected applicant
would not have been regarded as disabled for failing to meet the job
requirements. Now, an affected applicant will likely be regarded as disabled, and
employers will have to defend the policy on the merits by showing how the
policy is relevant to job performance.
EEOC Cracks Down on Inflexible Leave Policies
In recent years, the EEOC has entered into several
sizeable settlement decrees resolving allegations that maximum leave policies
violate the ADA. The following cases illustrate this trend:
In light of the EEOC's position towards inflexible job
requirement policies and maximum leave provisions, employers should consider
reviewing such policies to allow for flexibility and individualized assessment.
Employers should be prepared to defend job requirements on the merits by
showing a connection with job performance. Leave of absence policies should
permit individualized assessment and make room for reasonable accommodation
upon an employee's return from leave.
Labor and Employment Trivia
Last week's question:
What is a "yellow dog contract" and where did the term originate?
Answer: A yellow-dog
contract is an agreement between an employer and an employee in which the
employee agrees, as a condition of employment, not to become a member of a
labor union. Prior to the 1930s, such contracts were widely used by employers
to prevent the formation of unions. Yellow dog contracts were outlawed in the
Norris-LaGuardia Act, enacted in 1932. The term was thought to have originated
in the pro-union press, where comments like this appeared "[This contract is] yellow dog for sure. It reduces to the level of a yellow
dog any man that signs it, for he signs away every right he possesses."
This week's question: What labor strike of the early 1900s was known as the
"Bread and Roses Strike" and why was it called that?
Please continue to send suggestions for trivia questions
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