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Republican lawmakers warn HHS Secretary that memo may violate whistleblower protections

May 10th, 2017  |  Pamela Wolf  |  Add a Comment

Efforts to remind the Trump Administration about whistleblower protections are still ongoing—and it’s a bipartisan effort. Most recently, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) came down hard on the Department of Health and Human Services in response to a memo instructing employees to inform the agency before communicating independently with Congress. In a May 4 letter to Secretary Tom Price, the Republican leaders criticized the memo, calling it “potentially illegal and unconstitutional.” The Trump Administration has been called out on potential whistleblower issues since even before the inauguration, when federal agency Inspectors Generals were purportedly told to start looking for other employment.

In their letter to Secretary Price, the Senators reiterated the need for whistleblower protections and asked the Secretary to issue guidance clarifying that employees have the right to communicate “directly and independently with Congress.” Grassley and Chaffetz pointed out that the memo did not include an exception for “lawful, protected communications with Congress.” The Republican lawmakers expressed concern that in its current form, employees are likely to interpret the memo “as a prohibition, and will not necessarily understand their rights.”

“These provisions are significant because they ensure that attention can be brought to problems in the Executive Branch that need to be fixed,” the lawmakers wrote. “Protecting whistleblowers who courageously speak out is not a partisan issue—it is critical to the functioning of our government.”

“In order to correct this potential violation of federal law, we request that as soon as possible you issue specific written guidance to all agency employees making them aware of their right to communicate directly and independently with Congress. Such guidance should inform employees of the whistleblower protections that apply, and make clear that the agency will not retaliate against any employee who chooses to exercise these rights. Once you have issued this guidance, please provide the Committees with a copy.”

Still a problem … This is not the first time that warnings about whistleblower protections have been raised in response to actions taken under the Trump Administration. Following reports that federal employees had been ordered not to make outward-facing statements for public consumption, including through blogs and twitter accounts, the U.S. Office of Special Counsel (OSC) on January 25 released a statement detailing its enforcement of the anti-gag order provision in the WhistleblowerProtection Enhancement Act.

Amidst mounting concerns about retaliation against whistleblowers, House Committee on Oversight and Government Reform Ranking Member Elijah Cummings (D-Md.), in a January 25 interview on “Morning Joe,” expressed concern over the purported gag order imposed on federal employees at the direction of the Trump Administration. Cummings said that the Committee relies on whistleblowers and noted that there had been some confusion over whether whistleblowers can talk to Congress. Cummings assured federal employees that they can in fact talk to Congress and that the law protects then when they do so.

On February 1, Grassley, Chaffetz, and Government Operations Subcommittee Chairman Mark Meadows (R-N.C.) sent a letter to White House Counsel Donald McGahn, urging the Trump Administration to protect whistleblowers as a means of encouraging transparency throughout the federal government. “Whistleblowers can be one of the incoming Administration’s most powerful allies to identify waste, fraud, abuse, and mismanagement in the federal government and ‘drain the swamp’ in Washington, D.C.,” the Republican lawmakers wrote.

“The White House is in a position to alleviate any potential confusion for federal employees regarding whether … recent memoranda implicate whistleblower protection laws,” the Republican lawmakers suggested. “As the new Administration seeks to better understand what problems exist in this area, this is an appropriate time to remind employees about the value of protected disclosures to Congress and inspectors general in accordance with whistleblower protection laws.”

Earlier bid to remove Inspectors General. On January 31, Cummings and Gerald E. Connolly (D-Va.), Vice Ranking Member of the House Committee on Oversight and Government Reform, also sent a letter to McGahn. Cummings and Connolly requested information about what they called “disturbing reports that officials from the Trump Transition Team threatened to remove Inspectors General after the inauguration.” Inspectors General, of course are the formal “whistleblowers” of sorts who scrutinize federal agency actions.

The Inspector General Act of 1978, passed in the wake of the Watergate scandal, is aimed at ensuring integrity and accountability in the Executive Branch. The Act created independent and objective units to conduct and supervise audits and investigations related to agency programs and operations.

The Cummings and Connolly correspondence came in response to reports that on January 13, Trump officials from various federal agencies engaged in what was seen as a coordinated campaign to “inform” Inspectors General that their positions were “temporary.” Several Inspectors General were purportedly informed that they should begin looking for other employment. Following a number of urgent calls, some of the Inspectors General were informed that the action had been overruled by more senior officials and never should have occurred, but there was no official communication in confirmation.

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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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