NLRB eviscerates the line between insubordination and protected concerted activity

Employers struggle with how to handle employees to take to social media to vent about work. And, they do so for good reason. For one, employers risk creating a viral nightmare out of a fleeting vent. Also, the NLRB continues to take a long, hard look at Facebook firings.

Case in point: Pier Sixty, LLC [pdf].

A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration. 

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! 

Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”

Not so surprisingly, when the employer learned of the Facebook post, it fired the employee. Also not so surprisingly, the foul-mouthed Facebooker filed an unfair labor practice charge with the NLRB.

The NLRB sided with the employee:

[W]hile distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including the words “fuck” and “motherfucker.” Considered in this setting, Perez’ use of those words in his Facebook post would not cause him to lose the protection of the Act.

Even if the air of this workplace is full with tolerated obscenities, should an employer ever have to tolerate this type of language specifically directed at a member of management and his family? More to the point, as the lone dissenter argued:

The language Perez chose to post was not merely obscenity used as curse words or name-calling. The phrases NASTY MOTHER F—er and F—ck his mother and his entire f—ing family are qualitatively different from the use of obscenity that the Respondent appears to have tolerated in this workplace. Perez’ statements were both epithets directed at McSweeney and a slur against his family that also constituted a vicious attack on them.

What are the takeaways for employers?

1. Insubordination is insubordination, period. An employer should not have to put up with this type of harsh language specifically directed at a member of management. Nevertheless, this case illustrates the regulatory environment under which employers currently operate, and the scrutiny that even the safest of terminations might receive.
2. If you want to make sure that you have the freedom to discipline any employee for the use of obscenities, it is safest to apply the same standard to all employees. Nevertheless, I firmly believe that the Board missed the mark in this case. There exists a real and meaningful distinction between the occasional conversational f-bomb and “Fuck his mother and his entire fucking family!!!!“

WIRTW #362 (the #rockweek2015 edition)

Cleveland is popping. We landed the 2016 Republican Convention. We keep showing up on national “best of” lists—best city to visit, best food, best beer…. Our urban renaissance continues at warp speed. We’re even revitalizing the Flats. And, one week from tomorrow, April 11, Rock Week starts, in honor of my city’s triennial hosting of the Rock & Roll Hall of Fame induction ceremony.

Rock Week kicks off with an awesome event. All day April 11, the Rock Hall will open its door for anyone and everyone to enter … free. The event, which the Rock Hall has dubbed Celebration Day, will feature two stages of music, food trucks, family programming and caps with fireworks in Voinovich Park.

At 2:30 pm, School of Rock will perform a set of music by 2015 inductee Joan Jett, featuring (among others) Norah Hyman on guitar and vocals. If you’re looking for something fun to do as we wait for spring to, well, spring, stop by the Rock Hall on April 11 and see my girl strum, sing, and rock. Here’s a small taste.

A video posted by Jon Hyman (@jonhyman) on Jan 24, 2015 at 9:33am PST

Here’s the rest of what I read this week:

Young v. UPS

• The ADAAA, Young v. UPS, and the new state of pregnancy accommodation law — via Phil Miles’s Lawffice Space
• Pregnancy accommodation FAQs for employers — via Robin Shea’s Employment & Labor Insider
• What Connecticut Employers Need To Know About Young v. UPS — via Dan Schwartz’s Connecticut Employment Law Blog

Discrimination

• Tim Cook: “Religious Freedom” laws are pro-discrimination — via TiPb
• Transgender Discrimination? He Said, She Said… — via The Employment Brief
• Hiring for Culture Fit: Discrimination by Another Name? — via In House
• 4th Circuit Holds Social Anxiety May Be Disability Under the ADA — via Wisconsin Employment & Labor Law Blog
• Disabilities that pose a “direct threat” in the workplace — via EmployerLINC
• Caregivers are protected from associational discrimination — via Mike Haberman’s Omega HR Solutions
• (Un)Equal Protection: Why Gender Equality Depends on Discrimination — via Ross Runkel Report

Social Media & Workplace Technology

• Your ex-employee won’t tell you the password to your company’s LinkedIn page. Now what? — via Eric Meyer’s The Employer Handbook Blog
• Wearables in the office: Security risk? — via Business Management Daily
• The Enemy Within: Five Strategies For Protecting Your Data From Rogue Employees — via Privacy and Data Security Insight
• Eight Keys for Developing a Data Breach Response Plan — via netWORKed Lawyers
• What the Difference Between Information Security and Cybersecurity? — via Ride The Lightning
• Cybersecurity: FINRA’s Take — via Above the Law
• Social Media Searches: Go Beyond the Google — via Litigation PostScript. Persuasion Strategies for Litigators

HR & Employee Relations

• I Didn’t Come to Work Because I Dreamed I Got Fired — via Workplace Insights
• My Employee Suddenly Became Gluten Intolerant — via Evil Skippy at Work
• When You Have to Let People Go, Do It With “Professional Kindness” — via TLNT
• Is Work Flexibility Already Trickling Into Your Office? — via 1 Million for Work Flexibility
• The Love Contract – Taking the Romance Out of Office Trysts — via The Labor Dish
• Litigation Update: FCRA Claim Against Paramount is Thrown Out — via employeescreenIQ Blog
• A new employer obligation to provide predictable scheduling? — via Overlawyered
• In surprise show of support, filibuster-proof Senate majority backs paid sick leave — via Wonkblog

Wage & Hour

• PTO – I Use It or I Lose It (Mentally, That Is) — via Rob Schwartz’s Dad Working
• Ninth Circuit Creates Circuit Split Regarding FLSA Classification of Sales Advisor Position — via Wage and Hour Law Update
• The Department of Labor Investigates Retailers’ Relationships with Janitors — via The Wage and Hour Litigation Blog
• Secret Service Hit with Overtime Suit on Off-The-Clock Work — via Wage & Hour - Development & Highlights
• The Religious Freedom Restoration Act (RFRA) and Wage and Hour Law — via Wage & Hour Insights
• When — and How– to Require Certification of FMLA Leave Requests — via The Emplawyerologist

Labor Relations

• President Obama Vetoes Senate Joint Resolution Disapproving NLRB’s New Union Election Rules — via Employment Law Worldview
• NLRB to weigh in on high-stakes McDonald’s labor dispute — via The Hill
• Legislation Allowing Unionized Companies to Give Merit Raises Introduced in Congress — via Matt Austin Labor Law
• #Nextchat RECAP: Are College Athletes Students or Employees? — via Next Blog

“Daddy, why do Jewish people not like Catholics?”

On Wednesday nights, my wife and I drop our daughter off at band practice, and then take our son to dinner before his keyboard lesson starts. While sitting at dinner last night, my son hit us with this bomb: “Daddy, why do Jewish people not like Catholics? … Why did the Jews kill Jesus?”

If you’ve been a long-time reader, you know that my family is interfaith. Even though my kids are being raised Catholic, they understand that their Catholicism is only half of their religious background. I could go into a long dissertation as to why they are being raised Catholic, but the reality is that I am much more a secular Jew than a religious Jew, and since kids need to be raised something, Catholicism makes more sense, even to me.

Be that as it may, I certainly don’t want my kids thinking that their Jewish side doesn’t like their Catholic side. This morning on the way to the school bus I probed Donovan on where he got the idea that Jews don’t like Catholics. As it turns out (and as I suspected), it was his takeaway from hearing the crucifixion story at PSR on Monday night. I have no doubt that the message wasn’t one of hate, but rather one of miscommunication. Nevertheless, in Donovan’s developing six-year-old brain, when he was heard, “The Jews didn’t like/support/belive-in Jesus,” he understood it as, “Jews don’t like Catholics.” It an honest interpretation from an intelligent six-year-old boy, since he’s been taught his whole life that Catholicism and Jesus are intertwined.

I will explain to Donovan tonight that Jews and Catholics love each other. After all, he’s Catholic, as is his sister, mom, grandma, grandpa, aunts, uncles, and cousins—and I love all of them. I will try to explain, as best as I can, the historical context of what happened 2,000 years ago, and, hopefully, he’ll understand that what some people did those millennia long ago does not translate to today. Then, I will explain to the PSR teacher that she needs to be sensitive to the fact that she is teaching at least one interfaith child, and must tailor her message so as not to alienate or upset. We should be teaching inclusion, not estrangement.

The same lesson translates to your workplace. We live in a multi-cultural, multi-religious society, yet we are becoming more and more fragmented. Our great melting pot is not longer an olio, but an mishmash of separate ingredients holding for dear life to the edge of the pot. We are fragmented by religion, national origin, and political belief. Your challenge as an employer is to ensure that your workplace is integrated. You need to ask yourself what kind of workplace you desire. Do you want a workplace of inclusion or exclusion? Do you want employees to feel as though they are part of a team, or part of a tribe that happens to work among other tribes in the same building? To me, the former not only makes for a more cohesive workplace, but also one that limits the risk of liability for harassment, discrimination, and retaliation.

When English-only policies and federal labor law collide

It’s been nearly 8(!) years since I first wrote about the legality of English-only workplace rules. If you scan the archives, all of my coverage of this issue has focused on whether such policies discriminate on the basis of national origin in violation of Title VII.

Now the NLRB is attempting to interject itself into this debate.

Last month, in Valley Health System [pdf], an NLRB Administrative Law Judge concluded that a healthcare provider’s English-only rule violated employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

The policy in Valley Health System required that all employees speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers … unless interpretation or translation is requested or required.”

The ALJ concluded:

Employees would reasonably construe [the] English-only rule to restrict them from engaging in concerted activity…. [The] English-only rule is vague as to time and location (i.e., must use English in patient and non-patient areas, in patient access areas, and between employees, staff, customers, patients and visitors), it infringes on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment.

What does this decision mean for your business?

1. It is only one decision of one ALJ. It is not binding on the Board, and it is not the law of the land. However, given how broadly the NLRB currently is interpreting employees’ section 7 rights under facially neutral workplace policies, businesses should nevertheless pay close attention.

2. It may not be sufficient that an English-only policy pass muster under Title VII as supported by a “business necessity.” Regardless of the business need for employees to communicate in English, a policy still may fall as unlawful if it prohibits or restricts employees from communicating about workplace terms and conditions.

Are Meerkat and Periscope the “next big thing” for employers to worry about?

Have you downloaded Meerkat or Periscope to your iPhone? Do you even know what Meerkat and Periscope are? They are new apps that permit you to live-stream video. They essentially work the same way—when you launch a live-stream, the app tweets out a link for your followers to watch your video. The only real difference in the experience (aside from the aesthetics of the apps) is that once you stop your stream on Meerkat the link goes dead and the video disappears, while Periscope can keep the link live for 24 hours of replay viewing.

Last week, within hours of Meerkat’s and Periscope’s launches, a massive building explosion on New York’s Lower East Side gave us a glimpse of the potential power of these apps, as they turned everyone with an iPhone into instant video-journalists. As for me, so far I’ve only used them to send out video of my dog sleeping on the couch (although I hope to put Periscope to use for some video legal updates in the near future).

Should employers worry about these apps? They offer employees tremendous power. Imagine your workers live-streaming alleged safety violations in your plant, or active sexual harassment, or a termination meeting, or an employer trying to break up a picket line?

Yet, this technology isn’t the-sky-is-falling for employers. For years, the iPhone has placed this same power into employees’ hands. An iPhone + an active internet connection + a YouTube account isn’t that much different than these new live-streaming apps. These apps remove some of the friction from the posting experience, but otherwise don’t create any new opportunities for your employees to journalize your workplace.

Employers shouldn’t knee-jerk ban these apps (or mobile devices in general) from the workplace. It’s possible that the NLRB would permit employers to ban the use of these apps in the workplace, but it’s just as likely that the NLRB will look at such policies with a harsh eye under its section-7 lens. Until we get some guidance from courts on these issues, there is real risk in broad-based bans of mobile technologies or apps.

Instead of rolling out a reactionary policy that could catch the NLRB’s attention, train your employees on their responsible use of the Internet, and your managers and supervisors on the need to be very aware of the possibility that everything that happens at work no longer necessarily stays at work. Indeed, if it happens at work, it is just as likely to end up on Facebook, Twitter, Instagram, YouTube … or Periscope.

You can follow me on Periscope @jonhyman, and tune in at 5 pm on April 11, where I’ll be broadcasting some of my daughter’s performance live from the Rock and Roll Hall of Fame.

6th Circuit deals blow to independent contractors

Have you ever had the cable guy show up to your house, only to see the name of some random LLC on the side of his work truck? Many cable companies use the services of “independent contractor” installers. But, are those installers truly “independent contractors,” or are they employees of the cable company? According to the 6th Circuit, in Keller v. Miri Microsystems LLC (3/26/15) [pdf], the answer is likely the latter.

In examining whether the plaintiff satellite dish installer was an employee or contractor, the court applied the six-factored “economic realities” test:

1. the permanency of the relationship between the parties;
2. the degree of skill required for the rendering of the services;
3. the worker’s investment in equipment or materials for the task;
4. the worker’s opportunity for profit or loss, depending upon his skill;
5. the degree of the alleged employer’s right to control the manner in which the work is performed; and
6. whether the service rendered is an integral part of the alleged employer’s business.

The majority applied a fact-based analysis to conclude that there were too many facts in dispute to make a legal determination on the issue. The dissent, however, took a more common-sense approach to the issue:

Despite our cataloging of the various factors that inform our decision, in the end we must take a common sense approach and look at the situation in its entirety. What does that show? Miri [the plaintiff’s single-member LLC] served as a middleman in the satellite installation business. The LLC had a single member: Anthony Miri. Its business plan was to work with individuals such as plaintiff who carry out the actual installations. Miri does not provide benefits to these individuals or withhold taxes. Nor does it enter into an employment contract with them. Plaintiff moved from providing installation services for another middleman, to Miri, and later to HugesNet directly, and provided additional products and services to customers directly while doing installations for Miri. It seems abundantly clear that both plaintiff and Miri intended that plaintiff be an independent contractor and conducted themselves accordingly. It is not clear what more the parties could have done that would have satisfied the Majority that plaintiff was an independent contractor.

What does all this mean? It is very difficult to establish, as a matter of law, that a worker is an independent contractor. Unless you want a jury deciding this complex issue, err on the side of “employee” unless it is abundantly clear that the worker is an independent contractor under the above six-factored test.

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WIRTW #361 (the “#RaceTogether” edition)

Have you heard the one about the coffee chain that wants its employees to engage customers about issues of race and racism in America? Here are the best things I read this past week on this issue, courtesy of Robin Shea’s Employment & Labor Insider:

• A conversation about race
• A conversation about race: The Exciting Conclusion

And here’s the best thing I watched this past week on the issue, care of John Oliver’s Last Week Tonight on HBO.

Here’s the rest of what I read this week:

Discrimination

• Double Space in Docs Now Being Used for Age Discrimination — via The HR Capitalist, Kris Dunn
• In Employment Litigation, the Best Defense is a Good Defense — via Dan Schwartz’s Connecticut Employment Law Blog
• EEOC has defined “ability to interact with others” as a major life activity, making social anxiety disorder a disability under the ADA — via Employment Law Matters
• EEOC Settles ADA Case Against Employer Who Did Not Offer Leave to Probationary Employees — via Wisconsin Employment & Labor Law Blog
• 8th Circuit Rejects Trio of ADA cases — via Minnesota Labor & Employment Law Blog
• EEOC Sends Notice of Proposed Rulemaking on ADA and Wellness Programs to OMB for Clearance — via EEOC
• Will Kleiner Win the Discrimination Battle but Lose the Retaliation War? — via WinWinHR
• EEOC quietly moves forward with plans to collect compensation data — via HR Hero Line

Social Media & Workplace Technology

• Wearables for Your Wellness Program — via ERC Insights Blog
• Study: When it comes to security, smartphone users aren’t very smart — via Boy Genius Report
• This Arkansas bill would let bosses force employees to friend them on Facebook — via The Washington Post
• Have You Signed A Social Media Prenup? — via Fistful of Talent
• Three Risks That Come With Telecommuting — via In House
• Blogging Law II: Online Shaming — via HR Examiner with John Sumser
• How to Separate the Personal and Professional on Social Media — via Harvard Business Review
• Password security: Your pet’s name, birth date, and “password” are out — via Technology for HR
• Facebook Service: It's Real — via Phil Miles’s Lawffice Space

HR & Employee Relations

• Me - Still Evolving — via Rob Schwartz’s Dad Working
• Can medical marijuana be banned from the workplace? The answer is a bit hazy, expert says — via Washington Business Journal
• Biglaw Mommy: The Case for Flex-Time — via Above the Law
• 15 True Tales of Job Interview Embarrassment — via Evil HR Lady, Suzanne Lucas
• Panera Bread To Record Employees As They Work — via Workplace Diva

Wage & Hour

• When employees cash paychecks stamped “full payment,” are their OT claims waived? — via Eric Meyer’s The Employer Handbook Blog
• DOL Secretary Tells Congress New FLSA Regulations Are Delayed, Outlines Department Priorities — via Wage & Hour Insights
• When Isn’t Your Employee Eligible for FMLA Leave? — via The Emplawyerologist
• What the Heck is FMLA Leave?! — via Blogging4Jobs

Labor Relations

• NLRB to help illegal workers secure visas — via Walter Olson’s Overlawyered
• House Committee Grills NLRB Leaders on “Quickie” Union Election Rule — via TLNT
• Employee Manuals Need Spring Cleaning Thanks to the NLRB — via Michigan Employment Law Advisor
• Don’t Fear Recertification — via LaborPains.org
• How do You Lose a Union Election after Winning It? — via Matt Austin Labor Law