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Sharing racist Facebook post warranted demotion, arbitrator rules

May 4th, 2017  |  David Stephanides  |  Add a Comment

A second shift supervisor took a vacation day to watch the Super Bowl. At some point, while at home watching the game, he received a video that he thought was amusing, and he posted it to his Facebook page. His Facebook friends included several co-employees, including at least one he supervised. As it turns out, however, the video, which was about two minutes long and showed a man giving a banana to a gorilla, was incredibly racist, given that the voiceover equated the gorilla with African-Americans. The employer received 40-50 phone calls complaining about the video. As a result, the employer demoted the supervisor, and he filed a grievance.

The employer’s justification for the demotion was found in the employee’s violation of two workplace policies. One policy required a work atmosphere free of discriminatory harassment and inappropriate behavior. The other required a respectful workplace free from violence, unethical conduct, or offensive conduct. The employee’s defense was that he had no idea that the video was racist because he did not listen to the audio and was unaware of the comparison of the gorilla to African-Americans. Even if he were to be believed, however, posting such a video created an environment that violated the employer policies.

One key question was whether those policies applied to activities that took place away from work. The arbitrator concluded that the video was “brought to the workplace” by posting the video to a Facebook page that included co-employees (and at least one person he supervised). It was the same, the arbitrator said, as if the employee had shown the video to co-workers in the break room at work.

The other key issue was whether the employee’s violation of the workplace policies justified a demotion, without first resorting to progressive discipline. Relying on testimony from a 37-year employee with supervisory responsibilities, the arbitrator concluded that the employee’s supervisory responsibilities had been fatally compromised by the Facebook posting. Admittedly, he was not given progressive discipline, but the employer could not be required to retain him as a supervisor in order to determine if morale and order suffer as a result of his actions. Its determination that his actions justified immediate demotion was reasonable under the circumstances. The grievance, therefore, was denied. Metropolitan Council and Transit Managers and Supervisors Association. 17-1 ARB ¶6883. Sherwood Malamud.

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Company accused of terminating Air National Guard member settles DOJ lawsuit

April 28th, 2017  |  Deborah Hammonds  |  Add a Comment

Earlier this month, the Department of Justice announced that it had settled a case in which a Rapid City, South Dakota-based company allegedly violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by failing to reemploy and ultimately terminating a servicemember.

According to the Justice Department’s complaint, Staff Sgt. Amber Ishmael’s military service was a motivating factor in BioFusion Health Products, Inc’s decision to deny her request for reemployment after an extended military leave and to terminate her employment.

At the time of her termination, Staff Sgt. Ishmael was a Senior Airman with the South Dakota Air National Guard, where she has served honorably since 2010. Staff Sgt. Ishmael was terminated following her deployment to attend Airmen Leadership School, a professional military education training associated with her military service. Under the terms of the settlement agreement, BioFusion has agreed to pay $3,000 in back pay.

“As a member of the Air National Guard, Staff Sgt. Ishmael was called upon to leave her civilian employment and serve our nation,” said Acting Assistant Attorney General Tom Wheeler of the Justice Department’s Civil Rights Division. “Our role at the Department of Justice is to protect the rights of the men and women who defend our freedom and safeguard our way of life, and this settlement demonstrates our robust and continuing commitment to those efforts.”

“Members of our Air National Guard must frequently sacrifice time away from their families and civilian jobs in service to our country,” added U.S. Attorney Randolph J. Seiler of the District of South Dakota. “When military obligations require servicemembers to be absent from their jobs, their employment rights must be protected. The Civil Rights Section at the U.S. Attorney’s Office in South Dakota is committed to protecting those rights. This settlement agreement demonstrates that when employers disregard their obligations under USERRA, our office will hold them accountable for their violations.”

The complaint was filed in the U.S. District Court, District of South Dakota. The case stems from a referral by the Department of Labor following an investigation by the agency’s Veterans’ Employment and Training Service (VETS).  After resolution failed, VETS referred the complaint to the Justice Department’s Civil Rights Division.  Assistant U.S. Attorney Alison Ramsdell of the U.S. Attorney’s Office in the District of South Dakota, handled the lawsuit with the assistance of the Civil Rights Division, both of whom work collaboratively with DOL to protect the jobs and benefits of servicemembers.

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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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