Most of us assume that if an employee swears at a manager or, he or she can be disciplined or even fired.  That assumption may be wrong, depending on the context in which the swearing occurs.  A federal judge recently held that the Federal Aviation Administration violated federal labor law when it removed a local union president from its premises

On my way in to work this morning, I was listening to NPR’s Morning Edition, and caught an interview with Lewis Maltby, president of the National Workrights Institute. The interview was ostensibly to promote Mr. Maltby’s new book, “ Can They Do That?” in which he discusses employment termination cases that were deemed legal, but seem, in his opinion, to be disproportionately severe or unjust.

What Mr. Maltby appeared to decry (without using the proper terminology) is the American presumption of “at will” employment—the notion that an employer may terminate an at will employee’s employment for any reason or no reason, so long as it’s not otherwise illegal. A couple of Mr. Maltby’s examples demonstrate that concept well. For example, he mentioned instances where it was permissible for an employer to terminate an employee based on the political bumper sticker on the employee’s car, and for a school to terminate an overweight teacher’s employment because the teacher did not project the correct image. As there are no laws that specifically protect individuals from discrimination based on political affiliation or weight, these terminations were in fact permissible. (I would caution, of course, that terminating an overweight employee does carry risk to the extent the employee might be considered to have a disability under state or federal law.)Continue Reading Despite Assertions to Contrary, Employment Laws Do Exist

Recently, an interesting debate has erupted in the employment law blogosphere over this National Law Journal piece cautioning employers about the risks posed by making recommendations on LinkedIn — a social networking website for professionals.  The perceived danger scenario is where a manager “recommends” the work of a subordinate, who is later terminated for poor performance.  The former employee then sues, and uses the manager’s “recommendation” as evidence that the stated reason for the termination (poor performance) is a pretext.  The debate over this issue centers on the true risk to employers of LinkedIn recommendations—some say the risk is real; others that it is overblown.

Our good friends Molly DiBianca of the Delaware Employment Law Blog and Daniel Schwartz of the Connecticut Employment Law Blog argue that the risk is overblown.  First, they point out that this scenario has played out in exactly zero cases to date.  Second, because managers are extremely unlikely to recommend poor performers, this scenario is unlikely to occur frequently.  Jon Hyman of the Ohio Employment Law Blog and Patrick Smith of the Iowa Employment Law Blog disagree and argue that employers should be concerned about such recommendations because people tend to be careless on the internet, and a LinkedIn recommendation can provide a crushing blow to the employer’s chances of prevailing on summary judgment in litigation.

So who’s right?Continue Reading LinkedIn Debate Highlights Broader Issue of Inflated Performance Evaluations

What’s an employer to do when it is ordered to reinstate former employees, but those employees are not legally authorized to work in the United States?  Pay liquidated damages instead, according to the Ninth Circuit’s recent decision in NLRB v. C&C Roofing Supply Inc

In C&C, the National Labor Relations Board (NLRB) alleged that

The Obama Administration has released its fiscal year 2010 budget request.  Among the items are several increases for the federal agencies that oversee labor and employment matters.  Here are some highlights:

  • $104.5 billion to the Department of Labor, an increase of 10 percent, to increase its staff and enforcement activity. 
  • $283 million for the National