Supreme Court Affirms Revocation Of Business Licenses For Hiring Undocumented Workers, May 27, 2011
On Thursday, the Supreme Court upheld the Legal Arizona Workers Act, which calls for the revocation of the business license of an employer who has twice been shown to knowingly or intentionally hire illegal workers. The Act also requires employers to utilize the federal E-Verify system to confirm a worker’s immigration status. Similar measures have been enacted in Virginia and Pennsylvania.
While illegal immigration is typically the province of federal law (at least until Arizona’s recent and well documented law concerning illegal aliens winds its way through the appellate courts), the Supreme Court relied on an exception contained in the Immigration Control and Reform Act that permits state action in regard to licensing issues. The case is unique in that the U.S. Chamber of Commerce allied with the Obama administration, unions and civil rights groups in opposition.
Employer Sued For Facebook Firing, May 26, 2011
In yet another case involving social media, the NLRB has filed suit against a Buffalo non-profit for firing several of its workers over a Facebook posting. According to the NLRB, an employee posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. In response, several other employees posted replies that criticized work loads, staffing and other working conditions. The non-profit consequently fired the five employees on the grounds that they harassed the employee that was identified in the first post.
The NLRB did not see it that way. In its complaint, the NLRB alleged that the posts constituted protected activities under the NLRA because they addressed terms and conditions of employment. A hearing is scheduled for June 22, 2011. It is important for employers to remember that these protections apply to union as well as non-union shops.
SEC To Vote On Whistleblower Protections, May 24, 2011
The SEC is set to vote Wednesday on new rules designed to provide whistleblowers potentially large incentives to disclose securities violations. Pursuant to legislation enacted by the Dodd-Frank Act, an employee/whistleblower could receive between 10% and 30% of an SEC sanction in excess of $1,000,000.
As expected, business groups have lobbied in response to the proposed rules and have sought to limit potential actions. Among other things, they argue that employees should be required to present their complaints first to the company for an internal investigation and that lawyers should not be allowed to represent whistleblowers on a contingency basis. Not surprisingly, whistleblower advocates argue that an internal reporting requirement would allow companies to hide their wrongdoing. It is expected that some form of the proposed rules will pass on Wednesday.
Stop Employee Harassment or Else, May 20, 2011
A federal court has ruled that a pattern of harassment by co-workers, which included references to the employee’s evangelical religious practices, gave rise to a claim of religious discrimination when the employer did not take sufficient action to stop it. EEOC v. T-N-T Carports, Inc., No. 1:09-cv-00027 (MDNC, May 9, 2011). The court held that once an employer has notice that an employee is being harassed for reasons protected by Title VII, it must respond with remedial action reasonably calculated to end harassment, citing EEOC v. Sunbelt Rentals, 521 F.3d 306 (4th Cir. 2008).
Employees can be vicious to each other, and employers cannot ignore nasty exchanges between employees. In this case, the employer probably thought that the harassment was over matters not protected by the civil rights laws and elected to “stay out of it.” Unfortunately, if the employer is aware of the harassment, and a portion of the harassment may touch on matters subject to the discrimination laws, it cannot ignore the situation in the hope that it will go away.
NLRB Overplays Its Hand, May 18, 2011
Republicans in Congress have introduced a bill to restrict the authority of the National Labor Relations Board and to expand the free speech rights of employers. This is a direct reaction to the Boeing unfair labor practice complaint issued trying to stop Boeing from opening a new plant in South Carolina, a right-to-work state. The Democrats, of course, oppose the proposed legislation.
Taking a page out of the Democrats’ playbook, Republicans have blocked or taken no action on presidential appointments to the NLRB, including the position of General Counsel. The President has resorted to recess appointments of individuals with Union pedigrees, who seem willing to put national labor law on its head to accomplish certain goals.
Employer Agrees to Pay Overtime to Misclassified Independent Contractors, May 14, 2011
The Department of Labor has announced a $270,696 settlement in back overtime to 114 cable installers. The DOL had determined that the installers, who were classified as independent contractors, were actually employees. Because the company treated the installers as non-employees, the DOL also alleged that it had failed to maintain adequate wage and hour records.
Remember, there is a move afoot to penalize employers more harshly for improperly classifying employees as independent contractors. Most governmental agencies believe that the misclassification is not merely a “mistake,” but a deliberate attempt to avoid legal requirements applicable to employees. This settlement illustrates the government’s position quite well.
Court Does Not Allow Doctor to Renege on His Agreement, May 14, 2011
Employees who suffer no adverse employment action cannot bring an action for discrimination under the Civil Rights Act. A federal appeals court has ruled that if the employee voluntarily consents to the employment action, it is not “adverse.” (Bissada v. Arkansas Children's Hosp., No. 09-2138 (8th Circuit, May 12, 2011).
A doctor lost his medical staff privileges at Arkansas Children’s Hospital and requested a hearing. Prior to the hearing, his lawyer asked if they could settle the dispute by turning the revocation into a resignation. The Hospital agreed, but several days later, the doctor claimed he had not agreed to the settlement. Oops, said the court, because the Hospital already had acted on the settlement. Therefore, there was no “adverse action.”
This case may help employers in the future who attempt to work out problems in the workplace with input from the affected employees. If the employer can show that the decision was part of an agreement with the employee, the employer may be able to show that there was “no adverse action.”
More Trouble with Twitter, May 12, 2011
A reporter for the Arizona Daily Star contended that this discharge from employment, for posting unprofessional and inappropriate tweets to a work-related Twitter account, violated Section 8(a)(1) of the National Labor Relations Act. At the time of his discharge, the reporter was covering the crime and public safety beat. In addition to taking a shot at the copy editors for Daily Star’s sports section, and calling TV news people stupid, the reporter’s tweets included things such as, “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.” In an Advice Memorandum, the National Labor Relations Board concluded that the discharge did not violate Section 8(a)(1), because the reporter’s conduct was not protected and concerted. The tweets did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.
Click here for the entire Advice Memorandum.
DOL Announces Wage and Hour App, May 11, 2011
This week the U.S. Department of Labor (DOL) announced the launch of its first application for smartphones, an electronic timesheet to help employees independently track the hours they work, including break time and any overtime hours for one or more employers. The free app is available in English and Spanish, and it is currently compatible with the iPhone and iPOD Touch. According to the DOL, “[t]his new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” This development, which demonstrates the DOL’s commitment to encouraging wage and hour complaints, emphasizes the need for employers to have well-defined timekeeping policies and procedures to accurately keep track of employee hours.
Watch What You Say To The Police, May 11, 2011
Miriam Leverington worked as a cardiac nurse for Memorial Health Systems (Memorial), which is an enterprise of the City of Colorado Springs, CO. After being handed a speeding ticket during a “less than cordial” traffic stop, Leverington told Colorado Springs Police Officer Duaine Peters that she hoped she never had him as a patient. Peters told Leverington’s superiors about her statement, and Leverington’s employment was terminated for threatening a police officer. Leverington sued Memorial contending that they violated her First Amendment right to free speech.
There are many cases dealing with the free speech rights of public employees. In these cases, the interests of public employees in commenting on matters of public concern [are] balanced with the employer’s interests “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). To carry out this balancing analysis, Courts have derived what is essentially a five part test.
One of the tests is whether the public employee is speaking about a matter of public concern. If speech sufficiently informs on an issue of public concern, it may be protected by the First Amendment. Leverington argued that the public-concern test should not apply to her statement, because was made off-duty and did not relate to her employer’s internal operations. The court disagreed, finding, “this is precisely the kind of speech that that public-concern requirement is designed to “weed out.”
Basically, Leverington was speaking “as an employee upon matters only of personal interest.” Leverington’s statement indicated that her personal animus toward Peters could impact any possible future interaction she might have with him as a nurse at Memorial. Memorial did not violate Leverington’s constitutional rights by terminating her employment.
Leverington v. Colorado Springs, 10th Cir., No. 09-1550, 5/5/11
OSHA Targets Cell Phone Use On-The-Job, May 6, 2011
David Michaels, the Assistant Secretary of OSHA, frequently reminds us that “OSHA is back in the enforcement business.” True to that message, the agency is ever vigilant in the search for ways to punish employers for the folly of their workers. In a recent example, Michaels announced in April 2011 that OSHA may now consider employers responsible for employee accidents resulting from their use of cell phones while driving, if OSHA determines that the employer’s policies (or lack thereof) contributed to the accident. According to Michaels, in an effort to send a “strong message,” OSHA is prepared to issue citations for distracted driving, particularly where an employer has created a “strong incentive” for the employee to use their phone while on the road. Though the agency will not draft a new rule or standard, it will rely on the OSH Act’s general duty clause as the basis for enforcing its new policy. Michaels claims that the agency is not ready to establish an all-out ban on cell phone use while driving for work, but you can bet that will soon appear on the horizon.
Facebook Posting During Work Hours - No Unemployment Benefits, May 4, 2011
With the advent of Facebook and other social media sites, many employers starting to notice that employees use work time to check their “pages” and post comments or emails to friends. Employees who interrupt their work to make a posting on a social media site, however, do so at their peril. For example, a nurse at Lifequest Nursing Center in Pennsylvania was fired after she used her cell phone to make a Facebook posting when she was supposed to be giving patients their medications. The nurse, Diane Chapman, apparently could not wait until after work, or for a break, to post a comment about a coworker who had a bathroom accident and soiled herself. So, she used her cell phone to access her Facebook account, while at the same time distributing medications to patients. Lifequest fired Chapman for violating company policy prohibiting the on-duty use of cell phones and for engaging in conduct that could cause a life-threatening situation for patients.
Chapman filed for unemployment benefits, but was denied. Upon her appeal, an unemployment compensation division referee awarded Chapman benefits, somehow finding that her violation of the company’s cell phone usage rule was not willful misconduct. That dubious decision was reversed by the agency review board. Chapman was determined to get her benefits, however, and appealed to a Pennsylvania trial court. In a victory for common sense, the trial court found that Chapman’s violation of the cell phone policy was willful misconduct, and given the reasonableness of the policy and Chapman’s admitted knowledge of the policy, she was not entitled to any unemployment benefits. Chapman v. Unemployment Comp. Bd. of Review, No. 1583-2010 (Pa. Commw. Ct. April 25, 2011).
Social Network Discharge, May 2, 2011
The media have featured reports of employees terminated for saying unkind things about their bosses on internet social networks. The NLRB, and perhaps some other federal agencies, consider such employee speech to be protected activity. An interesting twist arose in Pennsylvania. A worker was terminated not because she posted unflattering material about employer, but because she spent her work-time posting to Facebook about other things. In violation of company policy, the employee used her cell phone while on the clock to keep people up to date on the events in her life. After she was fired for her updating activities, the employee was denied unemployment benefits because of "willful misconduct." A three judge court heard her appeal and upheld the state decision to deny unemployment benefits. If the employee had written nasty things about her employer, the NLRB might have stepped in on her behalf.
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