Facebook "Like" Button - Protected Activity? It Depends on What You "Like"!

In an ever expanding arc of decisions that extends the NLRA’s protections to a wide range of employee conduct – both on-and off-duty, and in union and non-union settings alike – the NLRB last week decided that merely clicking on Facebook’s “Like” Button was concerted, protected activity. Triple Play Sports Bar, 361 NLRB No. 31 (August 22, 2014).

Triple Play Sports Bar is a non-union employer whose owners had a little difficulty preparing annual payroll tax calculations, and as a result, employees owed state income tax in arrears. One of the employees – not happy at the prospect of back taxes – posted on her Facebook “Status Update,”

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly‼! Now I OWE money … Wtf‼!

Other employees chimed in with comments of their own (“[the owner] f***** up the paperwork…as per usual”; “[the owner is] such a shady little man. He prolly [sic] pocketed it all from our paychecks…”; “Such an a******”), as did a couple of the Sport’s Bar’s customers. But one employee simply pressed the “Like” button and made no other comments. Company owners terminated the employees for defamation and disloyalty.

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Washington Court of Appeals Holds Independent Contractors Are Protected from Retaliation by the Washington Law Against Discrimination

The Washington courts are strict in their interpretation of the classification of individuals as employees versus independent contractors, resulting in many an employer discovering that an “independent contractor” is instead an employee. But the Washington Court of Appeals’ recent ruling in Currier v. Northland Services, Inc., confirms that even those individuals who qualify as bona fide independent contractors will be deemed subject to the full protections of the Washington Law Against Discrimination (“WLAD”), including protection from retaliation. 

In Currier, the plaintiff, who worked as an independent contractor truck driver for NSI, overheard another independent contractor make a racist “joke” to a Latino driver. Currier reported the incident to NSI’s quality assurance manager, who informed the dispatchers of Currier’s complaint. Two days later, the dispatchers terminated Currier’s contract, citing “customer service issues” and informing Currier that they had spoken with the other truck drivers and “they had decided that the joke was funny.”

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California Supreme Court Makes It Easier For Workers in Misclassification Cases To Obtain Class Certification

Employment class action litigation is often won or lost with a class certification ruling.  If the employer is successful in opposing class certification, then these cases often go away with little or no fanfare and limited liability.  If, however, an employer is unsuccessful, it may be exposed to substantial liability.  After the California Supreme Court's ruling last month in Ayala v. Antelope Valley Newspapers, workers alleging employment misclassification claims will find it easier to obtain class certification thereby transforming their relatively small individual claims into potentially multi-million dollar class action disputes. 

The plaintiffs in Ayala were newspaper carriers employed by defendant newspaper publisher. In their action, the four plaintiffs claimed that defendant classified them as independent contractors when, in reality, they were employees entitled to various wage and hour protections.  They sought to certify a class consisting of other carriers employed by defendant. The trial court denied plaintiffs' motion for class certification, concluding that common issues did not predominate because determining the carriers' employee status would require a detailed review of how defendant controlled the work of each respective carrier.  Plaintiffs appealed the trial court's denial to the Court of Appeal which agreed with plaintiffs that the issue was a common one capable of answer on a class wide basis. The California Supreme Court granted review and affirmed the ruling by the Court of Appeal. 

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President Obama Signs Executive Order Banning LGBT Job Discrimination by Federal Contractors and Government

What the Executive Order Does:

This Executive Order amends two earlier executive orders: it amends Executive Order 11246, which prohibits discrimination by federal contractors to add sexual orientation and gender identity to the existing prohibitions of race, color, religion, national origin, age and sex discrimination. In addition, Executive Order 11478, which, as amended, bars discrimination against federal employees on the basis of race, color, religion, sex, sexual orientation, national origin, disability and age, is further amended to include gender identity. Notably absent from the Executive Order is an expanded religious exemption requested by some communities of faith, similar to the one included in ENDA. However, President Bush’s Executive Order 13279, which permits religiously affiliated federal contractors to favor individuals of a particular religion when making employment decisions remains in effect.

The new Executive Order states that the provision affecting federal employees will take effect immediately. The provision affecting federal contractors and subcontractors likely will be implemented by early 2015.

What Does This Mean for Employees:

In eighteen states, including California, Minnesota, Oregon and Washington, and in the District of Columbia, laws already exist to protect employees from discrimination based on sexual orientation and gender identity. Additionally, the White House’s Office of the Press Secretary notes that most of America’s major companies have already included LGBT protections within their non-discrimination policies: 91% of Fortune 500 companies prohibit discrimination based on sexual orientation and 61% prohibit discrimination based on gender identity. Among the 50 largest federal contractors, which represent nearly half of all federal contracting dollars, 86% prohibit discrimination based on sexual orientation and 61% prohibit discrimination based on gender identity.

However, there are still 29 states without express job protections based on sexual orientation, and 32 states lack bans on gender identity discrimination. There are an estimated 14 million employees of federal contractors who live in states without state law protections that will now be covered.

What About the Employment Non-Discrimination Act (ENDA):

President Obama has reaffirmed that there remains a need for ENDA. Although ENDA was passed by the Senate in November 2013, ENDA is unlikely to be taken up for a vote in the House anytime soon. In signing the Executive Order, President Obama stated “I’m going to do what I can, with the authority I have, to act. The rest of you, of course, need to keep putting pressure on Congress to pass federal legislation that resolves this problem once and for all.”

Authored by Ed Reeves and law clerk, Dexter Pearce.

Supreme Court's Noel Canning Decision Invalidates Numerous NLRB Decisions

The U.S. Supreme Court has invalidated President Obama's 2012 "recess" appointments of several members of the National Labor Relations Board ("NLRB" or "Board"), which occurred while the Senate was in a three day recess. As a result, every decision issued by the Board between January 4, 2012, and July 30, 2013, is void, including some highly controversial decisions which negatively impacted employers. National Labor Relations Board v. Noel Canning (June 26, 2014). A copy of the Noel Canning opinion is here: http://www.supremecourt.gov/opinions/13pdf/12-1281_bodg.pdf

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Ninth Circuit Approves Employees' Right to Strategically Decline FMLA Leave In Escriba v. Foster Poultry Farms

Under the Ninth Circuit’s recent holding in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014), many employees now have greater flexibility to extend family and medical leave beyond the typical 12-week limit under the Family and Medical Leave Act (“FMLA”). While the Escriba court’s holding was intended to benefit the employer in that case, Foster Farms, its impact on other employers may have the opposite effect.

Maria Escriba sought two weeks of leave from her employment with Foster Farms in order to care for her ailing father in Guatemala. Although Ms. Escriba informed her supervisors of the FMLA-qualifying reason for the leave, she expressly requested that the time be deemed as vacation leave, rather than family leave. When Ms. Escriba failed to return to work after the expiration of her vacation leave, Foster Farms terminated her employment. 

Ms. Escriba filed suit, alleging that Foster Farms violated the FMLA and the substantively identical California Family Rights Act by terminating her employment. Specifically, she claimed that Foster Farms was required to designate her leave as FMLA leave, regardless of whether she declined FMLA leave, arguing that an employee cannot waive her rights under the FMLA.

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Does Data Discriminate? Perspectives for Employers on the White House's Recent "Big Data" Report

Last month, the White House released a comprehensive report on the use of “big data” in the public and private sectors. Employers should pay particular attention to one of its central forecasts: the EEOC and other federal antidiscrimination agencies may begin scrutinizing how employers collect and use big data in managing their workforces.

The concept of “big data” is difficult to define. The report observed that big data generally “reflect[s] the growing technological ability to capture, aggregate, and process an ever-greater volume, velocity, and variety of data.” “Big data” describes the process by which an entity gathers massive amounts of information from social media, the internet, and other (typically electronic) sources. Websites use big data to deliver user-specific advertisements. Medical researchers and healthcare providers use it to develop targeted disease prevention methods. Financial institutions use it to better detect cyber fraud. The CIA even used big data to track down Osama Bin Laden.

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Washington State Supreme Court's Decision on Religious Accommodation: What It Means for Employers

Employers in Washington should take note of last week’s decision from the Washington State Supreme Court holding that state law allows a claim for failure to reasonably accommodate an employee’s religious practices. That result is hardly surprising, but how the Court reached that result, and its other conclusions along the way, will complicate how businesses in Washington operate. While the obligation to accommodate employees’ bona fide religious practice has existed under federal law since at least the early 1970s, smaller employers not subject to Title VII must now comply -- and all employers are now subject to suit for such claims in Washington state courts.

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Court Rules That Telecommuting May Be a Reasonable Accommodation Under the ADA

The Sixth Circuit recently held in EEOC v. Ford Motor Co. that regular attendance may not mean physical presence in the workplace, and that telecommuting may be a reasonable accommodation for some employees with disabilities under the Americans with Disabilities Act ("ADA").  This case provides yet another cautionary tale for employers wrestling with complex ADA accommodation issues.

Irritable Bowel Syndrome Makes It Hard To Be At Work--Can Telecommuting Be The Answer?

Jane Harris had worked at Ford since 2003 as a resale buyer, acting as an intermediary to ensure there was no gap in steel supply to parts manufacturers. Although the job duties included such tasks as updating spreadsheets and making site visits, the main function of the job was group problem-solving, which required communication and collaboration with the resale team and others in the supply chain. Harris’ managers determined that such interactions were best handled face-to-face.

Harris suffered from irritable bowel syndrome, which caused fecal incontinence, and began taking intermittent FMLA leave when her symptoms flared up. Her job performance suffered after she began to take leave. Harris was unable to establish consistent working hours, and frequently made mistakes because she could not access suppliers while working nights and weekends. Her co-workers and manager were forced to pick up some of the slack. Eventually, in February 2009, she formally requested that she be permitted to telecommute on an as-needed basis to accommodate her disability. Although Ford had a policy permitting telecommuting up to four days a week, the policy also stated that such an arrangement was not appropriate for all positions or managers. However, some of Harris’ counterparts telecommuted one day a week.

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Eugene, Oregon Poised to Be Next City To Put Itself On Paid Employee Sick Leave Map

Not to be outdone by its neighbors to the north--Portland and Seattle--Eugene, Oregon appears poised to become the next jurisdiction to pass an ordinance requiring employers to provide employees working within city limits with paid sick leave. A coalition of pro-sick leave advocacy groups, including Portland-based Family Forward, first brought the topic before the council in February. A majority of council members support the idea and recently asked staff to draft an ordinance that could be ready for public comment in May or June and on the books by January 2015. 

In drafting the ordinance, council staff will likely look to Portland’s sick leave ordinance, which took effect January 1, 2014.  While there's a lot more to it, in a nutshell the Portland ordinance requires employers with six or more employees to provide workers in Portland up to 40 hours of paid sick leave per year. (Employers with fewer employees may provide unpaid leave.)  Notably, for jurisdictional reasons the Portland ordinance does not apply to federal or state government employers.  Since any ordinance passed by the city of Eugene will probably face similar jurisdictional limits, one of Eugene’s largest employers, the University of Oregon (as well as other state and federal government employers in the city), would likely be unaffected by passage of an ordinance in Eugene.

The City Council is expected to meet again in late April to continue discussing the ordinance. We will continue to keep you apprised as new developments occur.

College Football Players Are Employees? Who's Next?

The NLRB’s Regional Director in Chicago issued a decision on March 26 in 13-RC-121359 finding the football players at Northwestern University are employees under the NLRA, over the objections of the University. The Regional Director rejected the University’s arguments that the players, who receive “grant-in-aid scholarships” from the University, are more akin to graduate students, held by the Board not to be employees in Brown University, 342 NLRB 483 (2004). The Director also rejected the University’s argument that the players were “temporary employees” who were not eligible for collective bargaining. 

Northwestern’s varsity football team consists of 112 players, 85 of whom receive scholarships that pay for their tuition, fees, room, board, and books in the amount of $61,000 per year ($76,000 per year if they take summer classes). The players receive a “tender” letter at the beginning of their football career that describes the terms and conditions of the offer; are subject to certain rules of conduct; and spend 20-25 hours a week in mandatory activities in the off-season, 40-50 hours per week during the season, and 50-60 hours per week during training camp. The Director found that the players performed “services” for the University that generated revenues of approximately $235 million during the nine-year period of 2003-2012 through the team’s participation in the NCAA Division I and Big Ten Conference through ticket sales, television contracts, merchandise sales, and licensing agreements.

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Safeguarding FSMA's Protectors: OSHA Issues Interim Whistleblower Reporting Regulations

Our colleague, Alyson Palmer, noted on our Food Liability Law Blog that the U.S. Occupational Safety and Health Administration (OSHA) published an interim final rule on February 13, 2014 creating the process for handling retaliation complaints brought by whistleblowers under Section 402 of the Food Safety Modernization Act (FSMA). Under the new rule, any employee who submits a complaint indicating a violation of FSMA or any FDA regulation or order is protected from any form of adverse employment action or harassment based in whole or in part on such a complaint. Businesses and employers within the food industry should strongly consider putting an adequate whistleblower protection policy in place, if they have not already done so. The interim final rule will be available for public comment until April 14, 2014.

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Utah Supreme Court "Repudiates" the Federal Multi-Employer Worksite Doctrine

In an unapologetic rejection of a decades-old legal fiction hatched by the federal Occupational Safety and Health Administration ("OSHA") and embraced by Utah Division of Occupational Safety and Health ("UOSH"), on January 31, 2014, the Utah Supreme Court repudiated the multi-employer worksite doctrine. Hughes General Contractors v. Utah Labor Commission, 2014 UT 3. The Court based its repudiation on the doctrine’s “incompatibility with the governing Utah statute.”

The so-called multi-employer worksite doctrine makes a general contractor responsible for the occupational safety of all workers on a worksite, including those who are not even the general contractor’s actual employees. In rejecting that doctrine, the Supreme Court reaffirmed that the responsibility for ensuring occupational safety in Utah is limited to an employer’s actual employees.

Hughes was a general contractor overseeing a construction project involving multiple subcontractors, including a masonry subcontractor. UOSH invoked the multi-employer worksite doctrine and cited Hughes for improper erection of scaffolding in connection with the masonry subcontractor’s work, concluding that Hughes was responsible as a “controlling employer” under Section 34A-6-201 of the Utah Occupational Safety and Health Act (UOSH Act) given Hughes’ “general supervisory authority over the worksite.” Hughes challenged the legal viability of the doctrine before the Administrative Law Judge, who upheld the citation; and then the Labor Commission’s Appeals Board affirmed the ALJ’s decision. The Board based its decision on the notion that Section 34A-6-201 “mirrors its federal counterpart, which was interpreted [by the 10th Circuit] to endorse” the doctrine. Id., ¶5.

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NLRB Re-Issues Controversial "Quickie" Union Election Rule

On February 5, 2014, the National Labor Relations Board ("NLRB") re-issued its controversial “quickie” election rule.  As you may recall, that rule, which was opposed by employer groups, the U.S. Chamber of Commerce and others, was invalidated by the D.C. District Court in May 2012.  The reissued "quickie" election rule would substantially shorten the time between the filing of a petition and the election to determine whether the union will represent employees--from  approximately 42 days to as little as 10 to 14 days.

The D.C. District court struck down the rule in 2012 for procedural reasons. The Board initially issued the rule in 2011, but its implementation was stayed as a result of a decision of the United States District Court for the District of Columbia, which held that the rule had been improperly adopted with only two Board member votes, rather than statutorily required three Board member votes, under the U.S. Supreme Court's landmark 2010 decision in New Process Steel.  Since July 2013, however, when the U.S. Senate confirmed President Obama's new appointees, the Board has operated with a full five members for the first time since 2007.

How The "Quickie" Election Rule Would Change Union Elections

Under the current approach, unions must gather authorization cards from at least 30 percent of employees in the unit sought to be represented in order to file a petition for an election with the NLRB. Sometimes employers know about the organizing drive before the petition is filed, but sometimes, they do not. During the pendency of the election (which is currently about 40 days), employers have an opportunity to “campaign” against unionization by providing employees with information about the union, its tactics, and the costs and disadvantages of joining a union. Once the employees vote in the election and the union is certified, the employees may not seek to decertify the union for at least a year, or until after the expiration of the first collective bargaining agreement, whichever is longer.

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Washington Supreme Court Holds That the WLAD Exemption for Non-Profit Religious Organizations is Unconstitutional as Applied to Certain Employees

The Washington Supreme Court has significantly limited non-profit religious organizations’ immunity from employment discrimination claims brought under the Washington Law Against Discrimination (“WLAD”), RCW 49.60. In Ockletree v. Franciscan Health System, the majority held that the exemption of non-profit religious organizations from the definition of “employer” in the WLAD is unconstitutional as applied in circumstances outside the scope of the organizations’ religious purposes.

Larry Ockletree worked as a security guard for a non-profit religious organization, FHS. Following the termination of his employment, Ockletree raised claims of race and disability discrimination against his former employer. FHS moved to dismiss Ockletree’s WLAD claims, arguing that it is exempt from the WLAD’s definition of an “employer,” which expressly excludes “any religious or sectarian organization not organized for private profit.” RCW 49.60.040(11).

The United States District Court certified two questions to the Washington Supreme Court: (1) whether the WLAD’s exemption for non-profit religious organizations violates the privileges and immunities clause or the establishment clause of the Washington Constitution; and (2) if not, whether the exemption is unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons unrelated to a religious purpose, practice or activity.

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