Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
In the post on Sunday 6/24/18 we learned about “personal” pizza and employee gripes. This is an NLRB decision, but has application in all workplaces considering the breadth of Section 7’s protection. So what happened? A pizzeria had a meeting for kitchen staff. The manager expressed frustration with several behaviors (noted in the post) and asked for comments at the end. Ralph replied with a cut on Brian. Ralph was later fired and then filed a charge with the NLRB. Whether or not Ralph engaged in protected activity was the subject of the suit – and is analyzed in the post. Given the backstory (see the post), this was a good win for employers.
TAKEAWAY: Be careful when employees seem to be talking unfavorably about the employer; it may be protected activity under the NLRA. Consult legal counsel before taking adverse action.
The post on Monday 6/25/18 was bout a $28M jury verdict on retaliation – wow! Let’s see why. Gessy and Nirva are Haitian-American nurses who worked at a hospital. Nirva alleged she was denied a higher-paying position because she is black. Gessy alleged that when she supported Nirva, she experienced retaliation. Gessy’s case was heard first. What happened is in the post.
TAKEAWAY: Even if you have a legitimate reason for adverse action, make sure it does not come off as retaliatory – in which case you will find yourself named as a defendant.
In the post on Tuesday 6/26/18 we saw than an employee was told she should be home in the kitchen, got settlement. Yep, that’s real life. Jennifer worked at a construction company for a few months as a truck driver. She had a bad time, including male co-workers sexually harassing her and more (in the post). She reported it all to the owner and site manager, but when the harassment continued, she quit. The EEOC sued. Now the employer is settling. The settlement terms are in the post.
TAKEAWAY: Investigate every complaint and train all employees on what not to do or say.
The post on Wednesday 6/27/18 was about an Association that shut down a family’s attempt to protect its home from flooding. The owners started building a concrete wall around their home so floodwaters wouldn’t harm their home. Then their homeowners’ association told them to stop. More background details are in the post,including the back-and-forth it put them through.
TAKEAWAY: Restrictions, covenants, and rules are there for all owners to follow and the association to enforce, but they must be applied evenly and reasonably.
In the post on Thursday 6/28/18 we saw that the EEOC argues that sexual orientation discrimination by a heterosexual can constitute a protected activity. Bonnie filed suit, and is now on appeal, arguing that her complaint about discrimination based on sexual orientation was protected activity. The EEOC even filed a brief supporting her. What’s different is that Bonnie is heterosexual. She says she was fired because of that – and how it impacted her Facebook posts (as noted in the post. The issue was whether or not she alleged any protected activity under Title VII. The basis of the EEOC’s brief is in the post. The case is still pending.
TAKEAWAY: Sexual orientation harassment and discrimination are areas of the law that are evolving and expanding. Make sure you know that might be found illegal before you take that adverse action.
The post on Friday 6/29/18 told us the NLRB gives employers more freedom with employee handbooks. This is good news. And yes you care, even if you are not a union workplace. Remember that Section 7 applies to ALL employers, so ALL handbooks are potentially subject to scrutiny for violations of that law. The NLRB’s general counsel recently issued a memo dealing with civility standards, and more listed in the post. The memo split handbook provisions into 3 categories: ruled that are generally lawful and 2 others (see the post). This was all done in light of the recent Boeing decision (discussed in the post). The memo gives examples of what is usually allowed and what is not (including a ban on disclosing salaries and employment contract contents.
TAKEAWAY: Employers should periodically review their handbook to ensure legal compliance – but with a potentially seismic shift like this, now is a good time for that review regardless of how long it has bene since the last review. Let an employment law attorney help.
Finally, in the post yesterday 6/30/18 we saw an employee denied a job because the manager wanted a Korean can continue with the suit. Jerberee was employed as a finance clerk. She wanted to transfer to the IT department and told the employer why (as in the post). The IT manager agreed, but then retracted the transfer for the reasons in the post. Jerberee reported what the manager said and, coincidentally?, was fired a week later for poor performance. She sued. The issue was whether a failure to transfer was an adverse action. The court’s action on appeal is in the post along with its reasoning.
TAKEAWAY: The law can be interpreted broadly, so ensure that employees, especially managers, are properly trained.
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