Social Media Remains A Big Ticket Item for the #NLRB, January 27, 2012
In August 2011, the National Labor Relations Board’s Acting General Counsel had issued a report on employee use of social media and online communications, and under what circumstances such behavior can be protected concerted activity under the NLRA. That report also set forth the NLRB’s position on permissive and over-reaching language in employer social media policies. That report was based on an analysis of the cases that had been decided by the NLRB regarding employee discipline for social media venting in the union and non-union context.
On January 24, 2012, the NLRB’s Acting General Counsel issued an updated report on unfair labor practices involving employee use of social media and the propriety of social media policies, based on the next set of cases decided by the NLRB on the subject. The overall message remains that employees who use social media to engage in protected concerted complaints about their employment are protected by the NLRA, as opposed to those employees who merely are discussing individual gripes. The key point on an employee’s social media activity falling within the protection of the NLRA is whether the posting activity relates to a prior discussion about terms and conditions of employment with co-workers, and whether other co-workers are engaging in on-line support or dialogue with the social media user. If yes, the internet based discussion will often be protected, even if laced with expletives or otherwise unsavory remarks. The report is available online.
Cat’s Paw Theory Did Not Help Depressed Employee, January 25, 2012
A heating and air technician, who suffered from depression, advised one of the company owners of this fact in conjunction with a discussion regarding a customer complaint filed against the tech. The owner never made any comments to anyone regarding the depression or discussed it as an issue. Shortly after the conversation, the owner did instruct his shop manager to cut overhead expenses, which resulted, in among other changes, the plaintiff being fired (along with four other people in the course of a few months). The plaintiff tried to argue that the owner’s instruction to the shop manager to cut expenses was motivated by his disability. The trial court granted summary judgment for the employer and stated that there was no evidence that the shop manager knew of the disability. Further, the court held, it was too speculative to find that the owner’s instruction to cut expenses was motivated by hostility toward the disability and that he also had the specific intent to see him fired. Auer v. Allied Air Conditioning & Heating Corp., No. 10-05285 (N.D. Ill. Jan. 23, 2012).
Sometimes a Headache is Just a Headache, January 23, 2012
Hopefully serving as a sign that courts will not regard the Americans With Disabilities Act Amendments Act of 2008 (ADAAA) as license to find every complaint or condition a “disability” under the ADAAA, the United States Court of Appeals for the Tenth Circuit recently held that a plaintiff who was diagnosed with migraine headaches was not “disabled” under the ADAAA. The plaintiff experienced migraines and admitted that she could suffer through them, drive herself to the office, and stay at work while experiencing a migraine, but at night, she would get home and “crash and burn” and was unable to care for herself in the evenings. The court was not impressed with the “crash and burn” theory and held that the plaintiff did not adequately explain how her evenings were any different from the average person’s ability to care for his or herself at home after a day at work. The court did not declare that migraines can never be a disability, but did make clear that migraines are not an automatic disability. Allen v. Southcrest Hospital, No. 11-5016, (10th Cir. Dec. 21, 2011).
Mood Disorder Or Misconduct? January 20, 2012
In 2005, James Hazen was a partner in a New York law firm. One of the perks of being a partner was a corporate credit card, which Hazen could use for personal reasons, so long as he paid for the charges. In December 2005, the firm’s accounting department reported that Hazen failed to submit any itemization of personal charges for the fourth quarter. Rather than give an explanation, Hazen stopped going to the office, claiming that he needed to decompress. In the meantime, the firm audited his credit card bills and uncovered more than $20,000 in personal charges for October-December 2005 for such things as over 50 hotel stays, limousines, adult movies, and calls to escort services.
Another partner reported that Hazen was in a terrible state and had a mental ailment for which he was seeking treatment. When the firm requested medical documentation of his alleged ailment, Hazen refused to provide it. He later admitted to listing his personal expenses on the credit card bills as chargeable to clients, but blamed it on an unidentified mood disorder. Hazen was fired a week or so later in February 2006.
Hazen filed a complaint with the New York State Division of Human Rights claiming disability discrimination and retaliation, alleging that the firm fired him because of his bipolar disorder. An ALJ for the agency found in Hazen’s favor, ultimately awarding him more than $500,000 in damages. On appeal, the New York appellate court reversed the decision and award, finding no evidence that the law firm had any knowledge of Hazen’s bipolar disorder or that it limited his performance as an attorney. The court noted that the firm received no documentation of any mental impairment, other than Hazen’s vague references to a mood disorder or emotional illness. Even if the firm knew of Hazen’s impairment, however, the court held that it did not excuse Hazen’s misconduct, and the firm was entitled to take appropriate discipline, in this case, discharge. Hazen v. Hill Betts & Nash, No. 5517 (N.Y. App. Div. Jan. 5, 2012).
Does The FMLA Protect An Employee’s Pre-Eligibility Request For Post-Eligibility Leave? The Eleventh Circuit Says “Yes”, January 19, 2012
The FMLA entitles eligible employees to take up to twelve weeks of unpaid leave for the birth or placement of a child or for a serious health condition of the employee or the employee’s spouse, child, or parent. “Eligible employees” are those who have worked at least 1,250 hours in the past 12 twelve months and have been employed by the employer for a total of at least 12 months as of the date the FMLA leave is to start. The FMLA also requires employees to give advance notice (at least 30 days) of the need for leave when foreseeable. There may be instances, then, when an employee, prior to becoming eligible under the statute, gives advance notice of anticipated need for leave occurring after she meets the FMLA’s eligibility requirements.
This was the situation for Kathryn Pereda, who claimed that after she notified her employer of her anticipated maternity leave, she was fired to keep her from becoming eligible to take that leave. In October 2008, Pereda started working for an assisted living facility operated by Brookdale Senior Living Communities Inc. In June 2009, Pereda told her supervisor that she was pregnant and would need to take FMLA leave after the birth of her child anticipated on November 30, 2009. At the time she gave notice, Pereda had worked for Brookdale for less than 12 months, and therefore, was not eligible to take FMLA leave at that time. By the time she gave birth, however, Pereda would be eligible to do so.
In her lawsuit against Brookdale, Pereda alleged that as soon as she gave notice of her anticipated need for FMLA leave, she was subjected to repeated harassment and ultimately fired in September 2009, a month shy of meeting the FMLA eligibility requirements. Pereda claimed that by terminating her, Brookdale interfered with her rights under the FMLA and retaliated against her for requesting FMLA leave. The trial court dismissed Pereda’s claims, holding that because she was not eligible for FMLA leave at the time of her termination, Pereda had no FMLA claim against Brookdale.
On appeal, the Eleventh Circuit disagreed. Noting that the FMLA requires employees to provide advance notice (at least 30 days) of the need for leave, the court found that the statute must “necessarily protect pre-eligible employees such as Pereda, who put their employers on notice of a post-eligibility leave request.” The court held that a pre-eligible employee has an FMLA interference claim if the employer fires the employee to avoid having to accommodate her leave once she becomes eligible.
The court also held that Pereda stated a claim for FMLA retaliation, because her notice of her need for leave was activity protected under the statute. Rejecting the employer’s argument that its decision would result in a “slippery slope” where employees could be deemed FMLA eligible after the first week on the job, the court clarified that its decision “simply means that pre-eligible discussion of post-eligible FMLA leave is protected activity.” Pereda v. Brookdale Senior Living Communities Inc., No. 10-14723 (11th Cir. Jan. 10, 2012).
Supreme Court Holds “Ministerial Exception” Stops Discrimination Claims, January 11, 2012
In a decision that many are calling a resounding victory for religious organizations, the Supreme Court has unanimously decided that the First Amendment’s establishment and free exercise clauses create a “ministerial exception” that bars an ADA lawsuit (and by extension all discrimination cases) brought against a religious organization by a former elementary school teacher who was a Lutheran “commissioned minister. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, -- U.S. --, 2012 U.S. LEXIS 578 (U.S. Jan. 11, 2012).
Cheryl Perich was a “called” teacher at the Lutheran School, and held the title “Minister of Religion, Commissioned.” In addition to teaching numerous secular subjects, she taught a religion class, led students in daily prayer, and attended school-wide chapel services. Perich took leave for illness for one school year, and was eventually fired. She filed an ADA claim and eventually the EEOC took up her cause. Reversing a decision in the School’s favor, the Sixth Circuit held that the “ministerial exception” did not apply to Perich’s claim, mainly because she was teaching secular subjects most of the time. She just wasn’t enough of a minister.
Reversing this decision, Chief Justice Roberts writing for the Court said that “[b]y imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments.” He continued, that “[a]ccording the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”
Note that some states, including Maryland, have a less sweeping interpretation of the “ministerial exception.” See Prince of Peace Lutheran Church v. Linklater, – MD –, 2011 Md. LEXIS 574 (Sept. 21, 2011). It will be interesting to see whether the Supreme Court’s ruling has any impact at the state level.
NLRB Invalidates Arbitration Agreement that Precludes Class Claims, January 10, 2012
Two members of the NLRB (and with one member recusing himself) held that an employer violated the National Labor Relations Act by requiring non-union employees to sign a mandatory arbitration agreement that waived employees’ rights to participate in class or collective actions. D.R. Horton Inc., 357 N.L.R.B. No. 184, (January 3, 2012).
NLRB Chairman Mark Pearce and Member Craig Becker found that D.R. Horton Inc.'s mandatory arbitration procedure, which stated that an employee waived a right to file a lawsuit, and precluded an arbitrator from consolidating individual claims as a class or group, violated Section 8(a)(1) of the Act because it interferes with the statutory right of employees to engage in “concerted activity” for their mutual aid or protection.
In considering this issue of first impression for the Labor Board, Members Pearce and Becker opined that their unfair labor practice finding did not conflict with the text or the policies of the Federal Arbitration Act. The decision is sure to be appealed, so stay tuned.
Just Another Day at the USPS? January 9, 2012
There’s an old (and not particularly funny) joke that goes:
Question: What’s it mean when the flag’s at half-staff in front of the Post Office?
Answer: They’re hiring.
As if the USPS doesn’t have enough to worry about, in a recent case from the Seventh Circuit, judgment in the Post Office’s favor was reversed when the court held that a black female employee who was fired because she told a psychiatrist she was having thoughts about killing her supervisor could proceed with her discrimination and retaliation claims. Coleman v. Donahoe, No. 10-3694 (7th Cir. Jan. 6, 2012). The reason? While the trial court said that Coleman could not identify anyone who was “similarly situated,” the appellate court disagreed, and found that two white, male postal workers who received seven-day suspensions for pulling a knife on a black co-worker could be considered similarly situated despite the fact they held job titles different from Coleman’s and reported to a different supervisor.
A seven day suspension for pulling a knife? Really? This case is important, not for the Postal Service’s apparently casual approach to potential workplace violence, but as a reminder that the “similarly situated” inquiry, at least at the prima facie stage, is a “flexible” analysis. A reasonable jury could find the white, male co-workers were appropriate comparators to Coleman because they were all subject to the same workplace ban on violence and physical threats and the same decision maker approved suspensions for the men but termination for Coleman.
President Obama Appoints Three New NLRB Members, January 5, 2012
by Eric Paltell
On January 4, 2012, President Obama announced that he would make three recess appointments to the National Labor Relations Board ("NLRB"). The three new appointees, who will be eligible to serve until December 2014, will bring the Board to its five member capacity.
The new appointees are Sharon Block, who is presently Deputy Assistant Secretary of Labor for Congressional and Intergovernmental Affairs (and former labor counsel to the late Senator Edward Kennedy); Richard Griffin, who is General Counsel to the International Union of Operating Engineers; and Terrence Flynn, who has been serving as Chief Counsel to NLRB member Brian Hayes, a Republican. The appointments of Ms. Block and Mr. Griffin, both of whom are Democrats, will give the Board a 3 to 2 Democratic majority.
Many observers were surprised by the President's willingness to use recess appointments to bring the Board to full strength. In a recent letter, 47 Republican Senators asked the president to refrain from using the recess appointment process to circumvent Senate approval of his nominees. The move was especially surprising since Ms. Block and Mr. Griffin were not even nominated for consideration until December 15, 2011, meaning that the Senate was given virtually no time to consider the appointees.
With the NLRB at full strength once the recess appointments take effect, it is likely that the agency will move forward with its controversial new rules for expedited representation elections, as well as the notice posting requirement, both of which are scheduled to take effect on April 30, 2012. Additionally, the Board will likely continue to issue labor-friendly decisions, such as the August 31, 2011 Specialty Healthcare case allowing unions to organize "micro-bargaining units." Barring a change in occupants at 1600 Pennsylvania Avenue on January 20, 2013, employers should expect to see five more years of an activist NLRB that will continue to take steps to facilitate union organizing activity.
NLRB Revises Rule in Anticipation of Quorum Loss, January 2, 2012
In preparation for the possible loss of a three-member quorum, the National Labor Relations Board has revised its procedural rules once again.
Since former Chairman Wilma B. Liebman’s term expired on August 27, 2011, the Board has been operating with three members. With Member Craig Becker’s recess appointment ending in a few days, the Board will be left with only two. The Supreme Court has held that the Board’s authority cannot be delegated to a panel with fewer than three members (New Process Steel LP v. NLRB, 130 S. Ct. 2635 (2010)).
As a result, the Board has made a rule revision which suspends ballot impoundment in the absence of a three-member quorum. Under the National Labor Relations Act, regional directors are required to impound ballots, when a request for review in a representation case has been made. However, impoundment delays the counting of the ballots until the NLRB rules on the request for review. The NLRB concluded that suspending the ballot impounding requirement and allowing regional directors to issue election certifications subject to review once the board attains a quorum would best serve the purposes of the National Labor Relations Act.
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