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Firing employee for expletive-laced Facebook post violated NLRA

April 25th, 2017  |  Lisa Milam-Perez  |  Add a Comment

An employer violated the National Labor Relations Act (NLRA) when it fired an employee because of comments he made on social media arguably disparaging his supervisor’s mother, the Second Circuit Court of Appeals ruled. The appeals court affirmed a National Labor Relations Board (NLRB) holding that the employee was engaged in protected conduct under the NLRA and his comments were not so “opprobrious” as to lose the Act’s protection (NLRB v. Pier Sixty, LLC, April 21, 2017, Cabranes, J.).

The NLRA prohibits employers from terminating an employee for union-related activity. But even otherwise-protected activity can lose the protection of the Act if it amounts to “opprobrious conduct,” leaving the employee subject to discharge. What constitutes “opprobrious conduct” in the context of an employee’s comments on social media? That was the question before the appeals court in the case of a catering company employee who referenced his supervisor’s mother in a profanity-filled Facebook post.

Break-time status update. The incident took place during a tension-filled lead-up to a union representation election. Two days before the scheduled vote, a supervisor used a “harsh tone” in giving directions to servers working a catering job. For one employee, it was just the latest example of management’s “continuing disrespect for employees.” So, during his break about 45 minutes later, he used his iPhone to post a message on Facebook. “Bob is such a NASTY MOTHER F@CKER,” he wrote, referring to the supervisor by name. “F@ck his mother and his entire f@cking family!!!!!” His brief post ended with “Vote YES for the UNION!!!!!!!”

The employee had ten coworkers or so among his Facebook “friends” who could view his post; he may not have known at the time that the post was publicly accessible. He took the post down after three days, but it had already come to management’s attention, and he was soon fired. He filed a charge with the NLRB that same day contending he was unlawfully terminated in retaliation for his protected, concerted activities.

Totality of the circumstances. Adopting an administrative law judge’s factual findings, a divided NLRB panel found the employee’s comments were “not so egregious as to exceed the Act’s protection.” The Board had eschewed its traditional four‐factor Atlantic Steel test used for evaluating “abusive” conduct within the brick-and-mortar workplace (a standard which had lost favor in the Second Circuit anyhow). Instead, the Board analyzed the Facebook post under the agency’s nine-factor “totality of the circumstances” test used in social media cases. The new test emerged from a recently issued guidance by the NLRB General Counsel’s office, one that paid heed to the “regularly‐observed distinction between activity outside the workplace and confrontations in the immediate presence of coworkers or customers.” (The appeals court was not convinced this new, more employee-friendly standard adequately balances an employer’s interests, but the employer didn’t challenge its use below, so the court would not address the matter.)

Checking off the “totality of the circumstances” factors, the Second Circuit held that the NLRB’s decision was supported by substantial evidence. The appeals court’s holding was informed by the larger context in which the offending comment was posted. In particular, the court noted:

  • While the Facebook post included a vulgar attack on the supervisor and his family, it also exhorted coworkers to “Vote YES for the UNION,” and the employee explicitly protested his supervisor’s mistreatment. It mattered that the underlying subject matter was workplace-related and addressed management’s poor treatment of workers and the impending union election.
  • The employer already had shown it was hostile to employees’ union activities. Before the employee ever posted the Facebook comment, the employer had threatened to rescind benefits or fire employees who voted in favor of the union. It also imposed a “no talk” rule on certain workers—including the employee discharged here, whose supervisor had prohibited him from talking about the union. As such, the social media “outburst” could be viewed not as an “idiosyncratic reaction to a manager’s request,” but as part of a larger dispute over the mistreatment of employees in the lead-up to the election.
  • The company consistently tolerated the widespread use of profanity by its workers—including the “f” word that so offended the employer here—as well as racial slurs, and it had never previously terminated an employee for the use of such expletives. In fact, the supervisor who was the target of the Facebook comment cursed at employees almost daily, screaming phrases like “Are you guys f@cking stupid?” In fact, the employee had worked for the employer for 13 years, with presumably as salty a tongue, yet only faced discharge for his election-eve profanity.
  • While the court conceded one could draw a distinction between the use of expletives generally and cursing at someone’s mother and family, the substance of the employee’s comments here could easily be taken not as a slur against the supervisor’s family, but rather, as an epithet directed toward the supervisor himself. (That’s how the law judge saw it).
  • Perhaps most notably, in terms of predictive value to employers: The appeals court observed that the comment was posted in “an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era,” acknowledging the growing (and permissible) role that social media can play in labor organizing. Also, the employee claimed he had mistakenly thought his Facebook page was private, and he took the post down once he discovered it was publicly accessible. That the post was briefly visible to the whole world, as the employer pointed out, was less meaningful to the Second Circuit than the mitigating fact that his outburst did not occur in the immediate physical presence of customers; nor did it disrupt the catering event.

Insufficiently “opprobrious”—or not the true reason? The admittedly “vulgar and inappropriate” conduct in this case sat “at the outer‐bounds of protected, union‐related comments,” the Second Circuit stressed. The appeals court hewed to the Board’s totality of the circumstances test, but seemed to ground its holding not only on its sense that the Facebook post was insufficiently “opprobrious” based on the requisite factors, but also on what seemed like skepticism that the post was the real reason for the employee’s discharge. (Perhaps the Board’s “totality” test itself is borne of such skepticism, as much as a desire to balance employee rights with the legitimate need for workplace civility.)

Crediting the NLRB’s factual findings gleaned after a six-day trial, the appeals court simply didn’t seem to think the Facebook profanity (again, hardly a novelty in this workplace, according to testimony) would have earned such a harsh rebuke had it not been made by a union supporter two days before a representation election. Which evokes the timeless labor law truism, one that long predates our social media era: If you wouldn’t otherwise fire an employee for misconduct absent his pro-union leanings or activism, then you can’t fire him for misconduct—at least not without running afoul of the NLRA.

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Airport workers with ‘supervisor’ in job title properly found to be non-supervisory

April 20th, 2017  |  Ron Miller  |  Add a Comment

Even though members of a proposed bargaining unit had the word “supervisor” in their job titles, they were not statutory supervisors, ruled the D.C. Circuit, in finding that substantial evidence supported the conclusion of the NLRB. In Allied Aviation Service Co. of New Jersey v. NLRB, a group of 54 employees sought representation by a union. They worked for an employer that contracted to provide fueling services to approximately 50 airlines at the Newark Airport. These employees generally ensured the smooth provision of fuel service at the airport, and their job titles of all included the word “supervisor.”

Employer challenge. In March 2012, the union filed a petition seeking to represent the employees. The employer opposed the petition, arguing that the employees were supervisory within the meaning of Section 2(11) of the NLRA, and therefore exempt from its coverage. However, an NLRB regional director found that the employees were non-supervisors and directed an election in the petitioned for bargaining unit. The employer sought Board review of the non-supervisory designation.

Ultimately, the union won a tight election. Still, the employer refused to bargain, and the union charged it with refusal to negotiate a collective bargaining agreement in violation of Section 8(a)(5). The Board held in the union’s favor and ordered the employer to bargain. Among its objections to the Board’s finding, the employer challenged its classification of unit members as non-supervisors.

Statutory supervisors. The employer contended that the Board erred in classifying the unit members as non-supervisory under the NLRA. It argued that the unit members were statutory supervisors because they exercised disciplinary authority over other employees. However, the record evidence showed that the unit members merely filed forms reporting misconduct, which was then taken up by higher-ups who made the disciplinary decision. While the unit members’ filing the reports played a role in substantiating conduct on which discipline might be based, they were “never involved in the ultimate [disciplinary] decision.”

Unit members also had the prerogative to counsel employees verbally in lieu of writing up reports. However, neither the discretion to forgo a written report nor the authority to write one sufficed to establish independent disciplinary authority on unit members’ part. Moreover, the relevant evidence failed to show that unit members acted as supervisors because they were not held accountable for another employee’s mistake.

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Decades-long saga ends as Bank of America agrees to pay $1 million to settle OFCCP charges of racial bias in hiring

April 19th, 2017  |  Cynthia L. Hackerott  |  2 Comments

Ending a 24-year saga, Bank of America (BOA) has agreed to pay $1 million in back wages and interest to 1,027 African-American applicants in a settlement that resolves OFCCP allegations of hiring discrimination against African-American applicants for entry-level clerical, teller and administrative positions at the bank’s Charlotte, North Carolina headquarters facility. Although Bank of America continues to deny these claims, it has agreed to the monetary settlement and also agreed to extend 10 job opportunities, according to an April 17, 2017 OFCCP statement announcing the settlement.

Litigation history. The case began in November 1993 when the OFCCP initiated a compliance review of the bank’s (at that time known as NationsBank) Charlotte, North Carolina facility. In April 2004, the bank responded without objection by providing the documents requested by the OFCCP and permitting the agency to conduct an onsite investigation. After the OFCCP advised the bank of its findings of discrimination, first in October 1994 and then with a revised notice in June 1995, the bank brought a federal court challenge to the agency’s authority to conduct the review, arguing that the OFCCP’s action violated the bank’s Fourth Amendment rights. NationsBank merged with the Bank of America, N.A. in 1998. When the court challenge failed (NationsBank Corp v. Herman, 4thCir, No 98-1127, April 6, 1999; cert. deniedsub nom. Bank of America Corp v. Herman, U.S.S.Ct., No 99-394, December 6, 1999) and Labor Department attorneys filed an administrative complaint, the bank pursued the case in the administrative forum.

On May 23, 2016, the bank filed a complaint in the federal district court for the District of Columbia (dkt no 1:16-cv-968) seeking review of the DOL Administrative Review Board’s (ARB) most recent ruling in the case (OFCCP v. Bank of America, ARB Case No 13-099 (ALJ Case No 1997-OFC-016), April 21, 2016). There, the ARB panel unanimously affirmed an ALJ’s conclusions that the bank intentionally discriminated against African Americans in 1993 as well as the ALJ’s award of remedies on those claims. However, a majority of the ARB panel foundfor different reasonsthat the OFCCP failed to establish that BOA was liable for the damages awarded for alleged discrimination in 2002-2005, and therefore, reversed the ALJ’s liability and remedy orders pertaining to 2002-2005 period. One of the administrative appeal judges in the 2-1 majority found fault with the OFCCP’s statistical analysis as to that period, while the other determined that the OFCCP violated the bank’s due process rights as to those claims. More detail on that ARB ruling and the history of this litigation is available here.

In December 2016, the parties informed the federal district court for the District of Columbia that they were in the process of negotiating a resolution of the matter, and requested a stay of the proceedings while settlement discussions were ongoing. On April 4, 2017, the court has entered an order to stay the proceedings until specified settlement provisions are met and ordered the parties to file a joint status report on July 7, 2017, if the matter has not been voluntarily dismissed by then.

Statements. “Although much time and effort has gone into this case by all parties, the department is pleased that the matter has been resolved. It is a win for the affected job applicants, for Bank of America and for the department,” said Acting OFCCP Director Thomas M. Dowd in the agency’s statement. “It reinforces our nation’s founding principles of fair treatment and level playing fields.”

In a statement provided to Employment Law Daily on April 18, 2017, a Bank of America spokesperson said: “We remain committed to fair hiring practices. While we continue to disagree with the Department of Labor’s analyses, we are pleased to have resolved this nearly-25-year-old matter.”

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Goldman Sachs may have to reinstate plaintiffs even if they resigned or had division eliminated

April 16th, 2017  |  Lorene Park  |  Add a Comment

By Lorene D. Park, J.D.

Finding that two former Goldman Sachs employees who sought reinstatement had standing to pursue injunctive and declaratory relief and that reinstatement was feasible even though one voluntarily resigned and the other left the company when her division was divested, a federal district court in New York denied Goldman Sachs’ motion to dismiss these plaintiffs’ claims for injunctive and declaratory relief. In so holding, the court revisited and departed from another judge’s interpretation of Wal-Mart Stores, Inc. v. Dukes on the issue of former employees’ standing to seek injunctive or declaratory relief.

The five plaintiffs in this long-running case accused Goldman Sachs of engaging in a pattern and practice of gender discrimination against its female associates, vice presidents, and managing directors with respect to compensation and promotion opportunities. They also claimed that gender bias “pervades Goldman Sachs’ corporate culture,” and that the company maintained a “boys’ club” atmosphere focused on things like drinking and sports. They claimed women were sexualized and those who complained were retaliated against. At issue here was the defendants’ motion to dismiss two of the plaintiffs’ claims for injunctive and declaratory relief.

Seeking reinstatement to “rightful position.” One of two plaintiffs was promoted to vice president in 2003, and became eligible to be promoted to managing director starting in 2005, but was never promoted again. She claimed she was evaluated more harshly than male colleagues, was paid less, and was given fewer opportunities. For example, she alleged that in 2007, her manager said she would be nominated to be managing director but should consider “adopting” rather than getting pregnant. When she took maternity leave, she was passed over for the promotion in favor of a male trader even though her revenue from her stock portfolio rose from $1.2M to over $6M that year and to $9.5M next year. Goldman Sachs subsequently “divested itself” of her department. Among other remedies, she sought reinstatement to “rightful position.”

The second plaintiff targeted by Goldman Sachs’ motion was a senior analyst who first worked in Miami and then Dallas, but traveled regularly to work from the New York office as well. She was promoted to associate in 2012 and made VP in 2014, but was allegedly evaluated unfairly based on gender and paid less than male colleagues. In March 2016, she asked to transfer back to Miami due to the relocation of her significant other. She was allegedly assured that “relocation to Miami in 2016 would be possible,” but she was later informed she could work in Dallas or New York or could apply for an “inferior position” in Miami. She alleged that she was denied the transfer in retaliation for participating in this lawsuit. She resigned but also seeks reinstatement.

Standing to seek injunctive or declaratory relief. In its motion, Goldman Sachs relied on a July 12, 2012 decision in this case issued by another judge. With “significant reservations,” that judge held that under Dukes, a former employee lacks standing to bring claims against her former employer for injunctive or declaratory relief. In the view of the court here, though, finding a “blanket denial” was too broad because Dukes involved a class, the application of Rule 23(b)(2) and (b)(3) to claims for back pay, and a need for individual review of monetary relief. The High Court’s decision did not address the impact of a request for reinstatement on standing. Noting that other courts have also disagreed with the 2012 ruling in this case, the court exercised its discretion to revisit the issue. Ultimately, it held that a former employee seeking reinstatement has standing to seek injunctive and declaratory relief. It also concluded that each plaintiff’s standing should be measured from the date of her motion to intervene in this case.

You don’t have to be fired to be reinstated. The defendants argued that allegations of unlawful discharge are required for a plaintiff to be eligible for reinstatement but the court disagreed. While the remedy might be most commonly used in such instances, reinstatement has been granted in a variety of other circumstances as well. That said, reinstatement may not always be feasible, and courts generally consider the circumstances to determine if it is appropriate.

Plaintiff who resigned proceeds with claim. Here, the plaintiff who resigned after being denied a transfer was a current employee when she intervened so she had standing to seek injunctive and declaratory relief. While the defendants argued that her claim became moot when she resigned, the court found that they failed to satisfy the “heavy” burden of showing it was “impossible” to grant her reinstatement. The court pointed out that she claimed she was consistently denied fair performance evaluations and resigned due to the systemic discrimination. She also claimed she was “assured” relocation was possible and that coordination of her team and “was already being done remotely.” With this in mind, and noting that she sought an order reinstating her to her “rightful position,” the court found reinstatement possible and denied the defendants’ motion.

At this point in the opinion, the court also granted this plaintiff’s motion to file a supplemental complaint adding retaliation claims under Title VII and New York City law (that the transfer denial was due to her participation in this suit). The claims arose after the most recent complaint was filed, and the plaintiff did not engage in undue delay or bad faith.

Plaintiff whose division was divested also proceeds. With respect to the plaintiff whose department was divested, although she was no longer employed at the time she intervened, the court found that she had standing to seek injunctive or declaratory relief under the principles discussed. Although Goldman Sachs argued that reinstatement was not feasible because her division no longer existed, the court disagreed. The plaintiffs claimed the company denied women opportunities for lateral moves into other areas of the firm and so it was possible that reinstatement in a lateral position might be the “rightful position” she sought.

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Sexual harassment is in the news again; this isn’t anything new

April 11th, 2017  |  Joy Waltemath  |  Add a Comment

Since the New York Times wrote April 1 about Fox News’ reported payments of $13 million in response to women’s complaints about Bill O’Reilly’s alleged behavior, with President Donald J. Trump himself weighing in during a later New York Times interview, saying “I don’t think Bill did anything wrong,” articles about sexual harassment have become inescapable.

In fact, there hasn’t been this much news about sexual harassment since former Fox News Chairman Roger Ailes left that organization after a reported $20 million settlement of sexual harassment claims brought by its former anchor Gretchen Carlson. That was six months ago. Approximately a month later (that would be five months ago), the Donald Trump/Billy Bush recording story broke about their “extremely lewd conversation about women” that took place in 2005. Just last month we learned about the Marine Corps and a private Facebook group called Marines United where naked photos of female marines were posted without their consent. It’s not like sexual harassment is out of the news for very long.

Averaging about one article every business day. We at Employment Law Daily are not surprised. Neither, I suspect, are you. Over the past five years of reporting employment law case analyses, Employment Law Daily has reported an average of approximately 244 articles per year involving sexual harassment. That is the equivalent of almost one article for every business day we publish, and that number has been pretty steady year over year. It looks like it is on track to continue in 2017; during the first quarter we have reported 64 articles involving sexual harassment.

At the EEOC too. EEOC charge statistics for sexual harassment haven’t varied that much since 2012, although they are down some: From 7571 charges filed in 2012, dropping to 7,256 in 2013, 6,862 in 2014, 6,822 in 2015, and 6,758 in 2016. Monetary benefits obtained, according to the EEOC, for sexual harassment claims run pretty steady: $43.0M in 2012; $44.6M in 2013; big drop to $35.0M in 2014; back up to $46.0M in 2015; and dropping again to $40.7M in 2016.

So what’s the point? The point is, simply, that we have chosen to tolerate some level of sexual harassment. It has a cost, in dollars and resources expended, as well as in lives and reputations compromised, but we act as though that is an acceptable cost of doing business—a societal norm, a level of which we expect and tolerate. In contrast, consider the impact that Mothers Against Drunk Driving (MADD) has had in the modification of social norms involving intoxicated driving, moving the public perception from a characterization of “drunk driving accidents” to “crashes caused by criminal negligence,” as a 2005 article in World Psychiatry suggested.

What will it take to move the needle on sexual harassment?  Is the issue lacking a grassroots organization—say, a “Mothers Against Sexual Harassment”—to lead the charge? More of the same anti-harassment training that has been used in the past does not seem to be the answer. Reports from June 2016 posit that “the type of anti-harassment training that has been done to date … is not as effective in actually changing behaviors,” according to Chai Feldblum, EEOC commissioner and co-author of the Select Task Force on the Study of Harassment in the Workplace.

The grandparent rule. Maybe another approach is warranted. A college friend who now has a medical practice instructs his employees to treat every patient like they would want their grandparent to be treated; perhaps that is the standard we could adopt for treating others in the workplace as well.

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