New “Union” Posting Required by November 14, 2011

August 29, 2011

A number of efforts have already been undertaken by the NLRB board to help make it easier for unions to organize in the private sector.  One such effort was commenced in December 2010, when the NLRB proposed a rule that required all private sector employers to inform their employees about the employees’ rights to organize, as well as other related rights.  Last week, in its latest effort to “level the playing field,” the NLRB turned that proposed rule into a Final Rule.

Under the Final Rule, effective November 14, 2011, private-sector employers whose workplaces fall under the National Labor Relations Act (note that this includes most employers, other than railroads and airlines covered by the Railway Labor Act and very small employers) will be required to post an NLRB employee rights notice where other workplace notices are typically posted.  Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites as well.

Copies of the notice will be available from the Agency’s regional offices on or before November 1, and it may also be downloaded from the NLRB website, when it becomes available.  The NLRB notice will state that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities.  The notice will provide examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.  

If you have any questions please contact us. These rules are federal and apply to every state.


A Court Decision Based on “Me Too” Evidence Goes Against The Employer

August 23, 2011

Last week, a California court held that evidence of alleged inappropriate gender-related conduct directed at female employees outside the plaintiff’s presence (and of which the plaintiff was not even aware) was admissible to prove the plaintiff was sexually harassed and fired because of her gender.  In Pantoja v. Anton, the plaintiff sued her former employer, an attorney, for (among other things) sexual harassment and gender discrimination, alleging she was subjected to a hostile work environment and fired because she is female.  The case went to trial and the trial judge granted the employer’s motions to keep out evidence of profanity and alleged touching directed at other female employees.  The judge ruled that unless the conduct occurred in the plaintiff’s presence or somehow affected the plaintiff, it was not admissible.  As for evidence directed to the plaintiff, she alleged that the defendant employer touched her inappropriately and regularly used profanity around her, some of it arguably gender based.  The employer testified that he never touched the plaintiff sexually and that while he may have used profanity, he never directed it at the plaintiff.  Instead, he might use profanity when describing a situation, which is different than calling someone a profane name or similar use of profanity.  The jury ultimately found for the employer and against the plaintiff on her claims for harassment and discriminatory firing.  The plaintiff appealed, arguing that the trial court erroneously excluded “me too” evidence.

The appellate court agreed with the plaintiff and held that the trial judge had abused his discretion in excluding “me too” evidence of harassing conduct directed at female employees other than the plaintiff.  The court held that it did not necessarily matter if the conduct did not occur in the plaintiff’s presence or otherwise directly affect the plaintiff.  The court held that such evidence was relevant to show the alleged harasser’s “intent.”  Interestingly, “intent” generally is not relevant to proving harassment.  Harassment can occur and be proven regardless of whether the harasser intends his conduct to be harassing.  This is what is commonly referred to as the “innocent harasser.”  What is relevant is the victim’s perception (and the perception of an objectively reasonable person) of the conduct.  Thus, the court’s ruling that harassment towards others is relevant to prove the harasser’s intent is at odds with fundamental harassment law.  Now, to be clear, the plaintiff also had a discrimination claim based on allegations she was fired because of her gender.  Intent is, of course, relevant to proving a discrimination claim because the decision-maker’s intent behind the termination decision is critical.  But the court nonetheless treated the two claims the same for purposes of analysis of the admissibility of this “me too” evidence. 

This case was all about the harasser’s propensity to engage in the behavior and the victim’s perception of having been harassed. Managers must remain focused and enforce a zero tolerance policy. It’s getting tougher!


Court Holds For The Employer-IIlegal Worker-Lawsuit Gets Tossed

August 14, 2011

This week, a California court held that the after acquired evidence doctrine barred an employee’s disability discrimination claims where in the course of litigation the employer learned that the employee was not authorized to work in the United States.  In Salas v. Sierra Chemical, Plaintiff Vicente Salas was a seasonal worker at Sierra Chemical who hurt his back and filed a workers’ compensation claim.  He was not recalled to work following the annual layoff, and claimed that the failure to do so constituted disability discrimination, and a failure to hire in retaliation for filing a workers’ compensation claim.  During the litigation, Sierra Chemical investigated and determined that the social security number provided by Salas in the hiring process did not actually belong to him.  Instead, it was a social security number belonging to a resident of North Carolina. Based on evidence that Salas had misrepresented his eligibility to work in theUnited States and had provided false information to the company, Sierra Chemical filed a motion requesting that the court throw out Salas’ lawsuit.  The basis for the motion was the after acquired evidence defense, with Sierra Chemical arguing that had they known the truth about Salas’ ineligible to work status he never would have been hired in the first place and, therefore, Sierra Chemical could not properly be held liable for a failure to hire/re-hire based claim.  The court agreed with Sierra Chemical.

The after acquired evidence doctrine serves as a defense to allegedly discriminatory failure to hire or wrongful termination where the evidence acquired that would have resulted in the challenged termination or refusal to hire. Salas claimed that Sierra Chemical did not hire him because of his disability, a claim that fails because he was not lawfully eligible to be hired. 

In short, Salas is an employer friendly decision, but serves only to clarify, not to expand, the after acquired evidence defense. This defense is used under the specific circumstances as noted above. Workers Compensation claims are not impacted but retaliation claims under Labor Code section 132 (a) may well be.

Hopefully the Ninth Court Circuit of Appeals won’t reverse the decision.


Feds Say Employers Can Take Action Against Employees For Comments Posted On Line

August 8, 2011

As the pace of social media continues to accelerate exponentially, the National Labor Relations Board has sought to define the parameters of an employee’s right to engage in “protected concerted activity” in the brave new world of Facebook, Twitter, LinkedIn and other such emerging internet based forums that permit employees to speak their minds (or whatever) about their supervisor or the employer in general.  As the NLRB has wrestled with the application of long standing legal precedents to the unforeseen new age of electronic communication, early opinions and advice memoranda have been difficult to harmonize and apply to emerging workplace developments.  However, in a series of three Advice Memoranda issued earlier this month, the NLRB appears poised to establish a more consistent approach to evaluating whether such electronic communications constitute “protected concerted activity.”  In each of these three memoranda, the NLRB recognized that protected activity can involve “circumstances where individual employees seek to initiate or to induce or to prepare for group action,” or where individuals bring “truly group complaints” to management’s attention.  In each of these three cases, applying consistent criteria, the NLRB found that no protected concerted activity existed.

In the first case, a bartender complained on Facebook to a relative about his employer’s tip policy and no raises for years, as well as referring to the customers as “rednecks” and other disparaging terms.  In the second case, a Walmart employee, upset with a new manager, posted “Wuck Falmart” and other more profane comments, on his Facebook wall.  In the last case, an employee of a homeless shelter carried on a Facebook conversation on company time, making inappropriate comments about the residents.  In each of these three cases, the NLRB held that no protected concerted activities took place, finding that each employee was airing individual concerns. 

What does all of this mean? In considering whether to terminate or discipline employees for comments made in social media, particular attention needs to be focused on whether the employee is commenting on purely personal concerns, or whether they are raising complaints discussed with others, or designed to induce group action.  A relevant consideration in each of the three cases mentioned above was the extent and nature of any coworker comments on any of the postings.  If coworkers wade in with comments agreeing with the employee’s complaints, as opposed to jests or offering emotional support, this could be grounds to find the employee’s posts to be protected activity.  The NLRB also noted in these cases that even if they had found protected activity existed, the employee’s profane or otherwise inappropriate behavior (posting on company time), could be sufficient to render otherwise protected activity to be unprotected.

As this is an area of law which is rapidly evolving, be sure to be aware of the current state of the law before disciplining or terminating an employee for comments made through social media which concern the terms and conditions of their employment.

For California clients remember, under the California Labor Code you cannot take any adverse action against employees for complaining about working conditions. If you are concerned about any postings as noted above just remember to consider whether the comments are personal or are legitimate business complaints that need to be addressed.


Proposed Legislation-California Employers Must Hire Court Ordered 30,000 Former Convicts?

August 1, 2011

As you may recall I have done previous articles on some proposed legislation (new minimum wage going up every year etc.). Well all of those Blog articles were based upon proposed legislation offered bySan Francisco area politicians. Now they are at it again!

California employers already have the additional burden of having a maze of state laws and regulations that surpasses that of any other state of the union.  Apparently that is not enough for the political machine in the bay area. The Mayor of San Francisco and his staff  are attempting to add some additional discrimination regulations that offer more protection than the California Fair Employment and Housing Act or California Labor Code!

San Francisco’s Human Rights Commission has proposed and is currently debating whether to push the San Francisco Supervisors to enact legislation that would ban discrimination in hiring and housing by private employers and landlords, based on prior criminal convictions.  The proposal was initially introduced by the San Francisco Reentry Council, an administrative agency of the city government that assists and coordinates local efforts to support adults exiting San Francisco County Jail, San Francisco juvenile justice out-of-home placements, the California Department of Corrections and Rehabilitation facilities, and the United States Federal Bureau of Prison facilities.  The Reentry Council feels that with the increased use of background checks and ease of which one can now find information about an individual’s criminal record from internet posted court files, combined with the recent order the United States Supreme Court requiring California to release up to 30,000 prisoners, this provision is necessary to help those released in San Francisco to better integrate into society.

Landlord and employers groups in the city are very disturbed over this proposal and argue that they need to have unfettered jurisdiction to decide whether it is appropriate and safe to employ or rent to former convicts.  They cite to the fact that California already has enacted Labor Code provisions that protect individuals from discrimination based on arrests not leading to a conviction and certain marijuana related convictions.

A tall tree can grow from a small acorn! Governor Jerry Brown has spent time in the bay area as a politician. Employers need to understand that he is more than likely listening very closely to any proposed legislation coming out of that area.

 I will be paying close attention to this one and keep you posted if it ends up being proposed statewide.