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Employer Policy Prohibiting Social Media Use During Company Time Violates the NLRA

Kollman, Saucier, & Jackson
10/03/2012
Labor Law, Social Media
The NLRB keeps at it and tells us, once again, that social media policies are almost never going to pass any smell test.  An administrative law judge for the Board issued another decision that seemingly binds the hands of employers who seek to keep their employee productive and focused on work during work time.  In ECHOSTAR, Inc., No. 27-CA-066726 (ALJ Anderson, Sept. 20, 2012),  the ALJ ruled that EchoStar Technologies’ social media policy...
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NLRB Rules Facebook Firing is Legal But Still Strikes Down Employer Policy

Kollman, Saucier, & Jackson
10/02/2012
Labor Law, Social Media
On September 28, 2012, the National Labor Relations Board (“NLRB”) issued the latest decision in its determined effort to define the permissible scope of social media rules in the workplace.  In Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012), the Board ruled that a BMW dealership did  not violate the National Labor Relations Act (“NLRA”) when it fired a car salesman for photos and comments posted on his Facebook page.  However, the Board...
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NLRB Extends Protection to Lying and Using Vulgar Language at Work

Kollman, Saucier, & Jackson
09/28/2012
Labor Law
On September 19, 2012, the National Labor Relations Board (“NLRB”) continued its assault on an employer’s right to set and enforce reasonable workplace rules.  This time, the target was a mean-spirited employer who had to gall to fire an employee who scrawled profanities on newsletters left in a break room and then lied to an investigator when asked if he had done it.  Because the conduct occurred in the context of a union decertification...
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Buttocks Slap Not Harassment; Complaint Not Protected Activity; Termination Not Retaliation. Really.

Kollman, Saucier, & Jackson
09/27/2012
Employment Discrimination, Retaliation, Sexual Harassment
It is football season, so apparently it is time to revisit the issue of the workplace buttocks slap.  Justice Scalia noted in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), when discussing whether an employee might find certain workplace behavior “objectionably offensive,” that a professional football player would not be embarrassed or harassed if his coach smacks him on the buttocks as he heads out onto the field.  This same...
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90 Day Right to Sue Requirement Runs from Time Lawyer Got Notice, First Circuit Says

Kollman, Saucier, & Jackson
09/26/2012
Employment Discrimination, Litigation
It’s pretty well recognized that a plaintiff needs to file a lawsuit within 90 days of her receipt of a notice of right to sue from the EEOC.  The timing requirement applies even if the recipient was not the plaintiff, but the plaintiff’s lawyer, according to the First Circuit.   Affirming summary judgment to Fondo del Seguro del Estado, Puerto Rico’s State Insurance Fund, the court held that Advilda Loubriel did not present sufficient...
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You Can’t Have Your Sex Harassment Cake and Eat It Too …

Kollman, Saucier, & Jackson
09/21/2012
Employment Discrimination, Sexual Harassment
In order for a plaintiff in a sex harassment case to prevail on a claim of hostile work environment sex harassment, the employee must show that the offensive behavior was unwelcome.  On September 17, 2012, a federal court in Illinois relied upon this principle of law to reject a harassment claim brought by a U.S. Department of Agriculture employee.   Jacober v. Dept. of Agriculture, No. 3:10-cv-00422 (S.D. Ill. 2012).  In Jacober, an employee...
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New York Expands Scope of Permissible Employer Deductions from Wages

Kollman, Saucier, & Jackson
09/19/2012
Agency Activity, Legislative Developments, Wage & Hour
For almost 50 years, New York has had one of the most restrictive state laws on deductions from wages.  Under Labor Law Section 193, wage deductions were permissible only when required by law or limited to “payments for insurance premiums, pension or health or welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit...
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Tenth Circuit Holds that ADA Title II Does Not Apply to Employment Claims

Kollman, Saucier, & Jackson
09/14/2012
Disability & Leave, Employment Discrimination
There is a Circuit split regarding whether Title II of the Americans with Disabilities Act (ADA) applies to employment discrimination claims.  Compare Zimmerman v. Oregon DOJ, 170 F.3d 1169, 1182–84 (9th Cir. 1999) (does not) with Bledsoe v. Palm Beach Cty. Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir. 1998) (does too).  In the 1990s, other Circuits generally applied Title II to employment discrimination claims without analysis. ...
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NLRB Places New Restrictions on Social Media Policies

Kollman, Saucier, & Jackson
09/14/2012
Agency Activity, Labor Law, Social Media
As readers of this blog know, the National Labor Relations Board’s Acting General Counsel has had employer social media policies in his proverbial crosshairs for the past 18 months. Over that time period, the Acting General Counsel issued three Reports outlining his views on the legality of employer social media policies, generally finding them to be unlawful when the policy used generalized language to prohibit employees from making critical...
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Working From Home Is Not Necessarily A Reasonable Accommodation

Kollman, Saucier, & Jackson
09/14/2012
Disability & Leave
A federal district court in Michigan has granted summary judgment to an employer that denied an employee’s request to work at home because of her irritable bowel syndrome. EEOC v. Ford Motor Co., 2012 U.S. Dist. LEXIS 128200 (E.D. Mich. Sept. 10, 2012). This case was brought under the Americans with Disabilities Amendments Act (ADAAA), which significantly expanded the scope of protections for disabled. Even so, the decision shows that the law still...
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