NLRB Expands Protections for Employees to Engage in Abusive, Profane Facebook Outbursts

Can an employee post a vicious and profane rant against his manager and his manager's family on Facebook -- during a union organizing campaign -- and be protected from discipline?  Yes, according to the NLRB in a decision issued on March 31, 2015, ordering the employer to reinstate the employee with back pay.

The employee's Facebook post stated in part:

"[My manager] is such a NASTY M***** F***er" ... F*** his mother and his entire f***ing family!!!!  What a loser!!!! Vote YES for the UNION!!!!!!!!"

Although the NLRB majority asserted that its conclusion that the posting was protected activity under federal labor law was in accordance with existing precedent, NLRB Member Johnson issued a dissent strongly disagreeing on that point.  As Member Johnson explained, although on some occasions intemperate conduct or use of profanity may be protected, in this case, the "offensive online rant, which was fraught with insulting and obscene vulgarities directed toward his manager and his manager's mother and family," was far outside the boundaries of protected speech and prior precedent, and was simply a "vicious attack" on the manager's family that should enjoy the status of protected, concerted activity.

For employers, the lesson is that, especially during a union organizing campaign, proceed with caution in issuing discipline, particularly where the context suggests the incident is intertwined with union organizational activity.

--Jonathan Nadler

--Jon Nadler, Eckert Seamans, Philadelphia

NLRB Implements Limits on Deferral to Arbitration

Following its December 2014 decision in Babcock & Wilcox, upending decades of precedent and limiting the circumstances in which the NLRB will defer to arbitration proceedings between and employer and a union, the NLRB General Counsel has issued guidance as to how this change will be implemented.

Among other changes, the NLRB now requires the party arguing that deferral should apply now has the burden of proof on this issue.  In addition, the Board will require an employer to litigate an issue twice -- once in arbitration, and again before the NLRB -- unless the party urging deferral can prove not just that the arbitrator considered the same set of facts and issues that the NLRB would consider, but that the arbitrator actually considered and ruled upon the "statutory" issue under the NLRA.  Moreover, the NLRB now will review whether it agrees with the legal conclusions of the arbitrator, by considering whether Board law "reasonably permits" the arbitrator's decision.

As a result, both unions and employers will be deprived one of the primary benefits of arbitration -- fast and efficient resolution of disputes -- and instead will be required to devote additional resources to litigating disputes on two fronts, over a longer period of time.

--Jonathan Nadler

--Jon Nadler, Philadelphia

ADA Duty to Accommodate Applies to Drug Testing

The EEOC recently announced a six-figure settlement and consent decree with Kmart in a case that underscores the importance of considering the duty to provide reasonable accommodations in every aspect of employee relations.  According to the EEOC's press release, the case involved a job applicant's claim that a medical condition prevented him from providing a urine sample for a mandatory pre-employment drug screen, and that he was not offered the opportunity to submit to alternative methods of testing.  EEOC also obtained significant injunctive relief though the settlement, designed to ensure that reasonable accommodations (such as the option to submit to blood, hair, or saliva testing) are made available where medically necessary.

--Jonathan Nadler

--Jon Nadler

Court Rules Employer Allowed to Require Employee SSN, Despite Religious Objection

Can an employer demand that employees provide their Social Security number as a condition of employment, even where an employee lodges an objection on the basis of their religion?

Yes, according to a recent decision, Yeager v. FirstEnergy Generation Corp., issued by the U.S. Court of Appeals for the Sixth Circuit.

The employee in this case claimed he was wrongfully terminated (or not hired) after he refused to provide his SSN, claiming that he had "disclaimed and disavowed" his SSN on the basis of a sincere religious belief.  He then sued for discrimination on the basis of his religion under Title VII and Ohio law.

The trial court dismissed the claims, and the 6th Circuit affirmed.  The basis of the court's decision was that while Title VII and Ohio law require an employer to make reasonable accommodation of an employee's sincerely held religious beliefs, the proposed accommodation here -- allowing an employee to refuse to provide a SSN -- was not reasonable, because federal law requires every employer to collect employee Social Security numbers for tax reporting purposes.

--Jonathan Nadler

--Jon Nadler

NLRB Implements Final Rule on "Quickie Elections"

In one of a flurry of important actions taken just before the end of Member Sharon Block's term on December 16, 2014, the NLRB has announced that it has approved the final rule overhauling representation election procedures.  The NLRB voted to approve these regulations 3-2, with both Republican Board Members dissenting.

These regulations will implement the most sweeping changes to NLRB election procedures in decades.  Designed to hasten the already rapid pace of the election process, under the new regulations pre-election hearings must be set to begin no later than 8 days after the representation petition is filed.  By noon on the first day of the hearing, the employer must submit a written statement of position listing all prospective voters, and addressing potential legal arguments regarding unit placement and voter eligibility.  For the first time, these lists must include not just employee addresses, but telephone numbers and email addresses.  The regulations also eliminate the right to NLRB review of Regional Director determinations, and replace the process with a discretionary review process.

These regulations, which go into effect on April 15, 2015, will have critical implications for employers, which often are unaware of any organizing activity until a petition is filed.

--Jonathan Nadler

--Jon Nadler

Unanimous Supreme Court Rejects FLSA Claim for Time Spent in Mandatory Security Screenings

The Supreme Court has ruled, in a 9-0 decision, that employees working at an Amazon.com warehouse are not entitled to compensation for time spent waiting to complete mandatory security screenings following their shifts.  The Court explained that to be compensable under the Fair Labor Standards Act, the activity at issue must be "integral and indispensable" to the principal activities that the employee is employed to perform.  In this case, the security screenings -- which could take as long as 25 minutes -- did not meet that test.  As Justice Sotomayor explained in a concurring opinion, the primary job of the employees (working in the warehouse) could be safely performed without the security screenings, unlike the case of a battery plant worker, who could not safely perform the job without taking time to put on (and then take off) protective gear, in which case that time would be compensable.

This decision further clarifies the circumstances in which tasks required before and/or after performing work are compensable, and will impact a number pending FLSA class actions relying on similar theories.


--Jonathan Nadler

--Jon Nadler

Failure to Specify At-Will Employment Allows Public Employee to Assert First-Amendment Retaliation Claim

The 7th Circuit issued a ruling today reversing dismissal of a First Amendment retaliation claim brought by a former adjunct professor at an Illinois community college (which is a public employer).  The plaintiff was terminated after writing a letter to an outside organization highly critical of the college's treatment of adjunct faculty.

In reversing the district court's dismissal of the First Amendment retaliation claim, the 7th Circuit held that the plaintiff had a protected interest in continued employment -- even though Illinois is an "at-will" jurisdiction and even though the plaintiff's 1-page employment agreement did not expressly provide for any heightened job protection.  However, the court focused on the absence of any language confirming the plaintiff's at-will status, as well as language in the employment agreement dealing with the specifics of the plaintiff's job responsibilities over the course of the academic year, which the court held could be construed to imply an expectation of employment for the year.

For employers, the key point is that for any employee you consider to be at-will, it is important that any employment agreement or employee handbook make this point clear.


--Jonathan Nadler

--Jon Nadler