Yesterday, WCPN’s The Sound of Ideas was kind enough to invite me to speak about criminal background checks in employment and the “Ban the Box” movement.
Did you miss the live broadcast? 1) shame on you; and 2) today’s your lucky day because WCPN archives all of its broadcasts on its website.
Thanks Mike McIntyre for having me on. Let’s do it again soon.
In Triple Play Sports Bar & Grille [pdf], the NLRB unanimously concluded that an employer unlawfully fired two employees for their off-duty Facebooking, and less-than unanimously concluded that the same employer’s social media policy was unlawfully restrictive.
A former Triple Play employee, Jamie LaFrance, posted the following on her Facebook page:
Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!
Two then-current employees, Spinella and Sanzone, interacted with that post. Spinella clicked the “Like” button under the comment. In response to another’s comment to the same post, Sanzone commented, “I owe too. Such an asshole.”
The Board concluded that Triple Play unlawfully fired Spinella and Sanzone for their Facebook activities:
Spinella’s and Sanzone’s comments were not “so disloyal … as to lose the Act’s protection.” … The comments at issue did not even mention the Respondent’s products or services, much less disparage them. Where, as here, the purpose of employee communications is to seek and provide mutual support looking toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the communications are protected.
The NLRB then examined the employer’s Internet/Blogging Policy, which stated:
The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.
The Board concluded that a vagueness and lack of specificity doomed the policy:
Here, we believe that employees would reasonably interpret the Respondent’s rule as proscribing any discussions about their terms and conditions of employment deemed “inappropriate” by the Respondent. The rule contains only one other prohibition—against revealing confidential information—and provides no illustrative examples to employees of what the Respondent considers to be inappropriate. Under these circumstances, we find the term “inappropriate” to be “sufficiently imprecise” that employees would reasonably understand it to encompass “discussions and interactions protected by Section 7.” …
The two unlawful discharges served as an indication to employees that the clause did not shield Sanzone’s and Spinella’s protected activity. Faced with these discharges, employees therefore would reasonably construe the Internet/Blogging policy to prohibit Section 7 activity such as the Facebook discussion of tax withholding issues involved in this case.
What can employers learn from this decision:
Even the simple act of clicking the “Like” button can be enough to constitute protected concerted activity.
The line beyond which an employee must cross to cost themselves the protections of the NLRA is far down the path of online speech.
For any social media policy to pass muster under the NLRA, you should provide specific examples of the prohibited speech. Generalizations will likely cause you problems with the NLRB.
The surest way to end up the NLRB’s crosshairs for an unlawful social media policy is to fire an employee for a violation of that policy. Absent a termination, it is unlikely the Board will ever find out about your policy.
If you’re near a radio tomorrow morning from 9 – 10, tune to 90.3 FM, WCPN, to hear me on The Sound of Ideas.
The topic of the day is “Ban the Box,” the disturbing legislative trend that prohibits employers from asking job applicants about criminal conviction histories on job applications. Given that we have an hour to fill, I imagine the discussion will also more broadly cover employment background searches in general.
If you miss the show live, I’ll have links for everyone to stream it at your leisure. You can also watch live on your computer here.
This is my second appearance on The Sound of Ideas, and I’m grateful to the show for having me back.
A few months ago, I had to fly to Houston for a hearing. After the flight took off, I witnessed the most impressive bit of alcohol consumption I’d seen since my college days a couple of decades ago. The guy sitting next to me ordered four bloody maries, downing all four in a matter of a couple of minutes. He then proceeded to pass out on my shoulder, but that’s a story for another day. That had been the most impressive feet of drinking I’ve encountered in some time … until I read Blazek v. City of Lakewood (6th Cir. 8/13/14).
Jonathan Blazek worked in the in streets, construction, maintenance, and repair department for the City of Lakewood. His job followed a seasonal cycle—leaf pick-up in the fall, snow removal in the winter, and Christmas tree pick-up after the holidays. His job required that he maintain a commercial drivers license.
For reasons that only Blazek could explain, on March 13, 2012, he arrived at work with a 21-ounce bottle of Canadian Mist whiskey stashed in his truck. During his one-hour lunch break, he drank the entire bottle, the equivalent of 14 shots of whiskey. At a post-lunch meeting, Blazek’s boss suspected something was “off” was Blazek. Even though Blazek denied drinking, she took him to the police station, where he blew a 0.132, 65% more than Ohio’s legal limit, and more than three times the limit for CDL drivers.
The City charged Blazek with various violations—being intoxicated at work, driving a city vehicle while intoxicated, drinking at work, and possessing alcohol on City property. Each violated the City’s policy on alcohol in the workplace, and Possessing or consuming alcohol on City property constituted a fireable offense—even for a first-time violator. But, this was not Blazek’s first violation. He admitted as his pre-disciplinary hearing that he had drunk “at work and/or drove City vehicles, on a handful of occasions in the [preceding] several months…. This includes driving a snowplow under the influence during a snow storm.” As a result, Blazek was fired.
Blazek sued the City for disability discrimination, claiming that the City had fired him because of, and failed to accommodate, his alcoholism. The 6th Circuit disagreed:
Plaintiff admitted driving a City snowplow during a storm while intoxicated. Plaintiff further admitted that was not his only time drinking on the job. Plaintiff's violations of City policies dwarf those of the other employees whom Plaintiff offers up as comparisons. The most analogous is Bork, who also operated a City vehicle while drunk—and was fired. Even if we assume that none of these fifteen employees was disabled (and there is no reason to make this assumption), the facts of their cases are simply too different from the facts of Plaintiff's case to be of use. Plaintiff therefore cannot show that Defendant's legitimate reason for terminating him was pretextual.
The ADA protects “alcoholism” as a disability. There is a huge difference, however, between alcoholism, which the ADA protects, and being drunk at work, which the ADA absolutely does not protect. The ADA is never going to cover any employee who uses substances at work, let alone one who’s in an altered state a result.
You are seldom in the wrong for firing an employee who’s drunk at work. It’s plain sad that we need a federal appellate court to remind us.
Here’s the rest of what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations
Matthew Weaving was diagnosed with ADHD as a child. As an adult, he pursued a career as a police office, and later a police detective. He joined the Hillsboro, Oregon, Police Department in 2006. His performance record at the HPD was spotty. His co-workers complained that he was often sarcastic, patronizing, and demeaning. After a 2009 complaint by a subordinate about Weaving’s bullying, the HPD placed him on paid administrative leave. While on leave, Weaving sought a mental-health evaluation, which concluded that some of his interpersonal difficulties had been caused by his continuing ADHD. Shortly thereafter, the HPD finished its investigation, finding that Weaving had “fostered a hostile work environment for his subordinates and peers,” was “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” and noting that he “does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.” As a result, the HPD fired Weaving, who sued under the ADA, claiming that the HPD fired him after he disclosed his ADHD diagnosis.
The 9th Circuit reversed a jury verdict of more than $500,000. Surprisingly, it did so based on a finding that Weaving’s inability to get along with others as a result of his difficult personality did not qualify as an ADA-protected disability.
A “cantankerous person” who has … trouble getting along with coworkers is not disabled under the ADA…. One who is able to communicate with others, though his communications may at times be offensive, “inappropriate, ineffective, or unsuccessful,” is not substantially limited in his ability to interact with others within the meaning of the ADA…. To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.
Since Congress amended the ADA in 2009 to expand the definition of “disability,” conventional wisdom has said that most medical conditions will qualify for protection under the ADA. This case sets the bounds of the exception. Weaving notwithstanding, employers should not hold out much hope that they will be able to win many ADA cases on an argument that an employee’s medical condition is not an ADA disability. In the right case, however, faced with the right employee, the right performance issues, and the right claimed medical condition, an employer might be able to prevail that the employee’s medical condition does not rise to the level of a “disability.” The better (safer?) course of action, however, is to assume that the medical condition is an ADA-protected disability, and instead argue that the condition notwithstanding, an employer cannot offer any reasonable accommodation that will enable the employee to perform the essential functions of one job. You end up at the same place—a dismissal—albeit on safer legal footing. Regardless of how you get there, however, it is reassuring to see a court refuse to protect an alleged jerk employee on a claim that a disability caused the awful behavior.
Following Nassar, “a Title VII plaintiff alleging retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate factors.” … So long as the untainted factors were sufficient to justify [the] ultimate decision, the University will be entitled to summary judgment.Thus, in any claim alleging retaliation under Title VII, courts must apply the stricter “but for” causation standard, regardless of the identity of the purported decision-maker. As a result, retaliation claims remain harder for employees to prove, and easier for employers to win on summary judgment.