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The cross-street of social media and the workplace continues to complicate the relationship between employers and workers. This week the government has filed a fascinating case under the National Labor Relations Act ("NLRA") alleging that an employer illegally terminated an employee for posting negative comments about her supervisor on the Facebook social media site.

To my knowledge, this is the first time the NLRB (or any other agency for that matter) has taken such a position in court. The Board's position is that an employee's activity of discussing the workplace online is protected "concerted" activity under the NLRA. Generally, the NLRA forbids employers from retaliating against employees (whether unionized or not) for discussing working conditions. The Board has taken the position that it makes no difference whether the discussion is around the traditional water cooler or around the new digital water cooler that is social media - protected activity is protected activity.

The NLRB's position would seem to call into questions many companies' current social media policies, which forbid making negative postings about the employer on the internet. Arguably such policies are now illegal under the NLRB's interpretation of applicable law. And remember -- this applies to all employers, whether unionized or not.

This will be an interesting case to watch. An administrative law judge is scheduled to begin hearing the case on Jan. 25. The material I have read about this case indicates that the Facebook post was responded to by several co-workers who were the employee's Facebook "friends". I think this likely bolsters her position considerably. A much more difficult question would be a situation in which an employee makes such a post but has no co-workers as Facebook friends or has co-workers as friends but cannot establish that any of them saw or were otherwise aware of the posting.

Source: New York Times Article
Tags: Concerted Activity, HR Management, Lawsuit Filings, NLRA, NLRB, Retaliation

My good friend Mike Maslanka has an excellent post up this week analyzing the Fifth Circuit's stringent standard in failure-to-hire/promote cases. Most recently, in Moss v. BMC Software, Inc., the Fifth Circuit rejected the age-based failure-to-hire claim of a 68-year-old applicant who was passed over for a job in favor of a less-qualified younger substantially younger applicant.
As is often the case, the Court starts out by denying that it requires the plaintiff to show that "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." It then uses precisely this standard in upholding summary judgment against the plaintiff - thus preventing this case from ever being heard by a jury. The court even goes so far as to stated that it doesn't matter if the plaintiff was clearly better qualified. What matters is whether the applicant's background "was a better fit for what the employer was looking for in the job."
Obviously the Fifth Circuit's opinion in Moss is a thinly-veiled end-run end-run around the U.S. Supreme Court's 2006 rejection of its "Face-Slap" standard and reinstituting the same (or arguably an even harsher) standard again.
Check out Mike's entire post here.

Tags: Age Discrimination, Case Opinions, Failure to Hire, Failure to Promote, Fifth Circuit, Rejection of Precedent

The Supreme Court heard arguments yesterday in Kasten v. Saint-Gobain Performance Plastics Corp. You recall that In Kasten, the Court will determine whether an employee's making an oral, instead of a written, complaint of a violation of the Fair Labor Standards Act is protected conduct under the statute's anti-retaliation provision.
October 17, 2010 - UPDATE - Link to Oral Argument Audio Added

The Supreme Court's 2010 Fall Docket has been released. Many employment lawyers have noted that while the current court has taken a dim view of employee's rights in general, one area where they have generally supported employees is in retaliation cases.
This Fall, the Court has taken three employment cases. Two of the three are retaliation cases.
Here is the basic rundown on this fall term's cases along with some links to the lower court's opinion and case briefing for each case:

In Thompson, the Court will decide whether someone closely connected with an employee who complains of discrimination -- here the employee's co-worker/fiance -- is protected from retaliation. The fiance was fired and has brought a retaliation case.

In Kasten, the Court will determine whether an employee's making an oral, instead of a written, complaint of a violation of the Fair Labor Standards Act is protected conduct under the statute's anti-retaliation provision.

Here the Court will be addressing what lawyers commonly refer to as the "cat's paw" theory of liability. The question presented is whether an employer, without discriminatory motive, may be liable for firing an employee based on information or advice from biased managers.

While none may make the front page of the local paper, all three of these cases are interesting issues and important to practitioners. I'll be watching them closely.

The White House has endorsed legislation by Senator John Kerry (D-Mass.) and Representative Jim McDermott (D-Wash.) to protect workers from losing benefits and protections as the result of a tax loophole.

According to press material issued by Senator Kerry's office, the Fair Playing Field Act of 2010, which Kerry and McDermott introduced on September 15, will close a tax loophole currently allowing businesses to misclassify workers as “independent contractors,” thereby creating an unfair environment for businesses that play by the rules and an unfair environment for workers. The bill is cosponsored in the Senate by Senators Kirsten Gillibrand (D-N.Y.), Patty Murray (D-Wash.), Sherrod Brown (D-Ohio), Al Franken (D-Minn.), Daniel Akaka (D-Hawaii), Chuck Schumer (D-N.Y.), and Patrick Leahy (D-Vt.)

Current law provides a “safe harbor” loophole allowing employers to treat a worker as not being an employee for employment tax purposes, regardless of the worker’s actual status under the common law test, unless the employer has no reasonable basis for such treatment or fails to meet certain requirements.

end the moratorium on Internal Revenue Service (IRS) guidance addressing worker classification;

require the Secretary of Treasury to issue prospective guidance clarifying the employment status of individuals for Federal employment tax purposes;

amend the provisions of the Tax Code that provide for reduced penalties for failure to deduct and withhold income taxes and the employee’s share of FICA taxes;

require persons who contract independent contractors on a regular and ongoing basis to provide a written statement to each independent contractor of the Federal tax obligations of independent contractors, the labor and employment law protections that do not apply to independent contractors, and the right of the independent contractor to seek a status determination from the IRS; and

require the Secretary of the Treasury to issue annual reports on worker misclassification.

Worker misclassification has recently received increased attention by both the Administration and Congress. The President’s budget for the 2011 fiscal year includes provisions that target the misclassification of employees as independent contractors and are estimated to raise more than $7 billion in revenue over 10 years.

Worksite immigration enforcement cases are pretty rare so when they happen they get everyone's attention. This week, a San Antonio restaurant company, its owner and four managers have been indicted on charges they conspired to hire illegal immigrants.
In 2008 a disgruntled former employee made a report to U.S. Immigration. After a two-year investigation, a federal grand jury Wednesday indicted the Salsalito Cantina company (which has two restaurant locations here in San Antonio), along with its owner, it human resources manager, its general manager Humberto Gonzalez, and its kitchen manager.

The indictment alleges they conspired to induce people to enter the United States illegally, hired them, completed fraudulent work verification documents and then hid them.
The company and the managers have reportedly denied the charges. The company's lawyer has implied that the case is built on untruthful statements of scared illegal aliens who were being questioned by the feds. It will be interesting to follow the case and see if all of the defendants maintain the same story and take the case to trial of if one them makes a deal with prosecutors.
In case you were wondering, the potential penalties for the defendants in a case like this one: Up to 10 years in prison for the individuals. The company faces fines of up to $500,000 per violation.
Source: You can read the whole story at the SA Express News.

Chicago-area Man Awarded $4.2 Million by Jury for Religious and Ethnic Harassment
Posted on September 14, 2010 by Christopher McKinney

A Chicago-area man was awarded $4.2 million in total damages Thursday from the Chrysler company by a federal jury who believed the company did not do enough to stop years of religious and ethnic harassment.

The jury awarded May $709,000 in compensatory damages and $3.5 million in punitive damages. However, statutory damage caps will likely lower the amount actually awarded to the plaintiff by a significant amount. Juries are never told that the full amount that they award to a plaintiff will not be ordered by the Court due to the damage caps that have been placed on such awards by federal and state legislatures.

Here are some of the most interesting employment law related articles and blog entries I came across in the last seven days.

Ohio Employer's Law Blog - Jon Hyman writes: "I think the cancer-is-not-an-ADA-disability cases are a thing of the past. Effective January 1, 2009, Congress amended the ADA to reinstate “a broad scope of protection.” Specifically, Congress found that the United States Supreme Court had narrowed the protections intended by the ADA, and rejected the holdings of Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. The ADAAA did not change the statutory definition of “disability,” but made significant changes in how it is interpreted. Importantly, the ADAAA clarified that the operation of “major bodily functions,” including “functions of the immune system,” constitute major life activities under the ADA. Moreover, the ADAAA provides that 'an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.'"

Smooth Transitions Blog - Rob Radcliff writes about the recent suit filed by HP against its former CEO, Mark Hurd, asserting that he cannot go to work for competitor Oracle. HP essentially claims that it is impossible for Hurd to take the job without breaching his contract with HP and without missapropriating HP's trade secrets. Radcliff notes that "Texas Court do not recognize the inevitable disclosure doctrine but have come close – California does not appear to either."

Daily Developments in EEO Law - Paul Mollica notes the Seventh Circuit's recent decision in Payne v. Salazar, in which the court holds that federal employees who adjudicate their Title VII claims through the agency route have a choice, if they are dissatisfied with the result, between appealing to the EEOC or refiling the claims in federal district court. Mollica notes that this case becomes the first to hold that an employee with multiple Title VII claims may accept the results of a winning claim while also proceeding to federal court with the losing ones.

If you come across an article that you think should make the weekly round-up, drop me a line at chris[at]mckinneylaw.net.

Tags: Case Opinions, Disability Discrimination, Lawsuit Filings, Noncompete Law, Trial Practice & Litigation Issues

Can Employers Prohibit Employees From Expressing Their Religious Views in the Workplace?

New York Labor & Employment Law Report - Interesting article on the topic. Employers cannot generally prohibit all forms of religious expression at work. However, many courts have held that an employer can prohibit employees from attempting to proselytize co-workers, especially when the co-workers are unwilling and are being harassed by the conduct.

FMLA Insights - Article addressing when an employer may seek a second opinion to verify an employee's serious health condition for purposes of Family Medical Leave Act ("FMLA") leave. Short answer, if the employer has a solid reason to doubt a medical certification then it may request a second opinion. But the process should not be used to harass employees seeking FMLA leave.

Remember that that the American Recovery and Reinvestment Act (ARRA) provided a COBRA premium reduction for eligible individuals who were involuntarily terminated from employment through May 31, 2010. There may not have been an extension of subsidies to individuals terminated after 5/31/10, but the effects of the subsidy are still with us for at least a few more months. Recall that individuals who qualified on or before May 31, 2010 may continue to pay reduced premiums for up to 15 months, as long as they are not eligible for another group health plan or Medicare. Those individuals who qualified for the premium reduction were only required to pay 35 percent of the COBRA premium otherwise due to the plan. You can review more details about this issue at Fox Rothschild's Employee Benefits Legal Blog.

New York Labor & Employment Law Report has an interesting article on the topic this week. Employers cannot generally prohibit all forms of religious expression at work. However, many courts have held that an employer can prohibit employees from attempting to proselytize co-workers, especially when the co-workers are unwilling and are being harassed by the conduct.
Click through to see the full post and the case discussed.

Christopher J. McKinney is board certified in Labor & Employment Law by the Texas Board of Legal Specialization. His practice is dedicated to civil litigation matters, with a particular emphasis on cases involving state and federal employment laws. As a...More...

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