October 2011 Quick Clips

NLRB Getting More Social Networking Cases, October 26, 2011

The National Labor Relations Board ("NLRB") has been at the forefront of legal developments in the world of social media in the workplace. As employees have taken to voicing their complaints about their employer, their boss, or their coworkers to social media sites like Facebook and Twitter, the NLRB has decided to weigh in on whether these complaints are entitled to legal protection. In August, the Board issued a report describing 14 cases where employees claimed they were unlawfully disciplined for engaging in "protected concerted activity" under Section 7 of the National Labor Relations Act (the report can be accessed here).

In an October 20th speech, Acting General Counsel Lafe Solomon said that the Board has received hundreds of cases in the past year brought by employees alleging violations of their legal rights by employers enforcing social media policies. Solomon stated that it is the NLRB's position that employers can lawfully ban disclosure of confidential business and proprietary information on Facebook, but cannot ban a discussion of working conditions. In the eyes of the NLRB, a Facebook conversation about your boss is no different than such a conversation in the lunch room or around the water cooler--regardless of the fact that the Facebook conversation can be witnessed by tens of thousands of people across the planet. Employers should expect to see more challenges from the NLRB as social media continues to become one of the primary means for employees to communicate both inside and outside of the workplace.

Medical Marijuana Workers Vote for Union Representation, October 26, 2011

by Eric Paltell

It's no surprise to see labor unions looking for "growth" industries where they can find new workers to organize. And there certainly is no better "growth" industry than the medical marijuana industry, especially in Western states such as Colorado and California. Sure enough, the United Food and Commercial Workers Union has targeted the industry, recently gaining the right to represent about 200 workers at seven medical marijuana dispensaries in Fort Collins Colorado. Although the union has not yet released a list of bargaining demands, rumor has it that employees will be seeking employer-provided Twinkies, Doritos, and Pink Floyd downloads as part of the benefit package.

Hiring a Substitute and Indefinite Leave are Unreasonable Requests Under the ADA, October 21, 2011

by Bernadette M. Hunton

A federal court in Missouri ruled that an employee’s requests for indefinite leave and a substitute were not reasonable accommodation requests under the Americans with Disabilities Act (ADA). Ousley v. New Beginnings C-Star, Inc., No. 09-01957 (ED. Mo. Oct. 14, 2011).

Ousley, a substance abuse counselor, took Family and Medical Leave Act (FMLA) leave for knee surgery in 2003, and then again for knee pain in September 2008. In December 2008, Ousley’s doctor provided a note that he should remain on leave until at least March 2009, but that his return date would be on a date “to be determined.” When Ousley exhausted his FMLA leave, he requested that his employer accommodate his disability by extending his medical leave indefinitely and hiring a substitute in his absence. The employer refused and Ousley sued under the ADA.

To prove his claim, Ousley was required to demonstrate that he was qualified to perform the essential functions of his job with or without reasonable accommodation. First, the court found that regular work attendance is an essential function of a counselor position. It then explained that there is “no precise test” for determining the reasonableness of a requested accommodation, however, a request will be considered unreasonable if it “either imposes undue financial or administrative burdens, or requires a fundamental alteration in the nature of the program.” Applying this test, it found that a request for leave “for an indefinite period of time” would constitute an undue burden, and that employers have no obligation to hire additional employees or reassign other workers to enable a disabled employee to perform the essential functions of his job. As a result, it granted summary judgment in favor of the employer.

A Cognizable Title VII Retaliation Claim Requires a Complaint of Employment Discrimination, October 19, 2011

by Bernadette M. Hunton

Two recent cases address the issue:

This past week the Supreme Court declined to review a black federal physician’s Title VII claim that she was terminated in retaliation for opposing race discrimination against drug trial participants. Bonds v. Sebelius, 2011 U.S. LEXIS 7306 (Oct. 11, 2011). Bonds argued that based on Title VII’s statutory language, federal employee complaints regarding any type of discrimination constitute protected activity. The Fourth Circuit rejected her argument, holding that federal employees, like private sector employees, must complain of employment discrimination to be afforded protection under Title VII. As a result, Bonds’ complaints regarding African-American infants under her care were not protected under Title VII because she failed to complain of employment discrimination. The court noted that Congress has enacted other statutory provisions, like the Whistleblower Protection Act, that provide more general protection for federal employees who report wrongdoing.

In Klinger v. BIA Inc., No. 11-05346 (N.D. Ill., Oct. 18, 2011), a general manager of a nightclub sued the club owner for firing her in retaliation for her opposition to the club’s discrimination against black customers. She sued for retaliation under Title VII and 42 U.S.C. § 1981. The court held that the Title VII claim must be dismissed because the club’s treatment of its customers did not constitute an unlawful employment practice. In contrast, it held that the manager could proceed with her § 1981 claim because § 1981, unlike Title VII, prohibits all forms of racial discrimination.

Supreme Court to Decide If Civil Service Reform Act Is Exclusive Remedy for Federal Employees’ Constitutional Claims, October 18, 2011

by Adam T. Simons

On October 17, 2011, the United States Supreme Court granted certiorari to decide whether the Civil Service Reform Act (“CSRA”) is the exclusive remedy for a former federal employee contending that his constitutionally rights were violated. (Elgin v. Dep't of the Treasury, U.S., No. 11-45, cert. granted 10/17/11). Four former federal employees, who were employed by the Treasury Department, FDIC and Department of Interior, filed a suit for reinstatement after they were discharged under a statute that prohibits federal employment of an individual who “knowingly and willingly” fails to register with the Selective Service. The plaintiffs claim that the underlying statute is unconstitutional because (1) it imposes a punishment with the right to a trial and (2) it applies only to 18 to 26 year old men. The Court of Appeals for the First Circuit held that it and the district court lacked jurisdiction because the federal employees were required to bring their claims under the CSRA and bring them first before the Merit Systems Protection Board. The decision to grant certiorari appears to be based on a split in the circuits, some of which hold that CSRA does not preclude federal district court jurisdiction over constitutional claims. The case will likely be argued in early 2012, with a decision next summer.

Class Action Waivers in Employment Arbitration Agreements are Binding, October 17, 2011

by Bernadette M. Hunton

A federal court in California has found that class action waivers in employment arbitration agreements are binding. Dauod v. Ameriprise Fin. Servs. Inc., No 8:10-cv-00302 (C.D. Cal., Oct. 12, 2011).

A former employee sued Ameriprise for violations of California’s wage and hour laws, seeking certification to proceed as a class action. Upon hire, the employee had agreed to arbitrate any claims, and to waive her right to arbitrate claims on a class action basis. While litigation was pending, the Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), holding that class action waivers in consumer arbitration agreements are enforceable.

The California District Court found that the Supreme Court holding “applies equally to a labor class action.” While it appears that such waivers will be enforced, the district court noted that at least in California, certain state laws may render the agreements unconscionable.

NLRB Postpones Effective Date of Mandatory Posting Requirement, October 6, 2011

by Randi Klein Hyatt

The National Labor Relations Board (NLRB) has just announced it has delayed the effective date of its new rule requiring that employers post in the workplace an official “Notice of Employee Rights” under the National Labor Relations Act. The rule, which had an originally scheduled effective date of November 14, 2011, will now become effective on January 31, 2012. The NLRB explained the postponement is to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The NLRB confirmed that there will be no other changes in the rule or in the form or content of the notice. The required poster is available online here.

Supreme Court Will Decide A Handful of Employment Law Cases This Term, October 5, 2011

by Randi Klein Hyatt

The United States Supreme Court opened its new term on October 3, 2011, with five employment-related cases on the docket (last term there were eight employment cases). Within those five cases (none of which appear to have significant employer-wide impact), the Court will consider: the scope of a “ministerial exception” to employment discrimination claims against religious schools; nonunion agency fee payers’ rights to contest union special assessments; whether a specific Family and Medical Leave Act provision can be constitutionally applied against state employers; whether an oil rig worker injured onshore is covered by the Outer Continental Shelf Lands Act; and what wage rates should be used to calculate an eligible injured employee’s disability benefits. Although the current docket does not include any big ticket item case, the Court may grant review to cases affecting employers and employees more broadly as the term proceeds, including reviewing the constitutionality of the health care overhaul law that President Obama signed into law in March 2010.

IRS “Speaks” On Employer-Provided Cell Phones, October 4, 2011

by Randi Klein Hyatt

The Internal Revenue Service (“IRS”) recently issued a Notice regarding the tax treatment of employer-provided cell phones, or the reimbursement of cell phone expenses, as an excludable fringe benefit. According to the IRS, when an employer provides an employee with a cell phone (or reimburses those expenses) to be used primarily for “noncompensatory business purposes,” then all cell phone usage, including any personal usage, is not taxable to the employee. “Noncompensatory business purposes” include: 1) the employer contacting the employee at any time for work-related emergencies; 2) the employer needing the employee to speak with clients when the employee is not in the office; and 3) the employee speaking with clients in other time zones outside of the employee’s routine work day. The IRS clarified that a cell phone provided to an employee to “promote the morale or good will of an employee;” as an incentive to a potential employee; or provided as additional compensation to an employee is not provided primarily for noncompensatory business purposes.

Department Of Labor Joins Forces With The IRS And Several States, October 1, 2011

by Michael R. Severino

The Department of Labor recently entered into a series of agreements with the Internal Revenue Service and several states in order to reduce worker misclassification. These agreements enable the DOL to share information with the IRS and the signatory states in order to ensure that employers are properly classifying workers as employees instead of independent contractors. The distinction is important. Independent contractors do not receive many protections available to employees, and employers are not required to pay employment taxes for independent contractors.

Employers should keep in mind that the test for determining whether a worker is an employee or independent contractor varies among the federal government, states, and IRS. The states that entered into these agreements are Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington.

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