What is the proper response from the company when two employees express their anger at the CEO when they receive bonus checks by returning the checks, voiding them, and writing, “kiss my a– Bob,” and “eat sh– Bob” on the checks? According to the National Labor Relations Board, firing them is improper.
After returning the checks, the employees posted pictures of the checks on a private Facebook page. Other employees followed suit by also voiding their checks and posting them to the Facebook page. However, only the first two employees wrote profanities on their checks. Not very long following this incident, both employees were fired. They filed grievances shortly thereafter with the NLRB.
The NLRB reinstated the employment of the two West Virginia coal miners. After their union voted against bonuses based on productivity, the coal mine management decided to implement the bonus program anyway. Apparently the two miners were unimpressed with the company’s generosity.
The NLRB judge who presided over the case found that the two miners had been wrongly discharged and that the words on the checks, “while profane and offensive, were nevertheless expressions of protest and outrage over what those employees viewed as implementation of a plan that would adversely affect their safety conditions and which constituted what the employees believed was a surprising violation of the terms of the collective-bargaining agreement.” Continue reading Cussing Out the CEO→
Employees can discuss their wages with their coworkers, despite many employers’ policies to the contrary. If this wasn’t clear enough when the National Labor Relations Board and the Fifth Circuit Court of Appeals emphatically told employers that (see this post for more information), now the federal Equal Employment Opportunity Commission is joining the chorus.
On January 21, 2016, the EEOC issued a 73-page proposed guidance to its investigators concerning retaliation claims. All of the laws EEOC enforces, like the Americans with Disabilities Act and Title VII, make it illegal to fire, demote, harass, or otherwise retaliate against applicants or employees because they complained to their employer about discrimination on the job, filed a charge of discrimination with EEOC, participated in an employment discrimination proceeding (such as an investigation or lawsuit), or engaged in any other “protected activity” under employment discrimination laws (more on the proposed guidelines concerning retaliation is coming in future posts).
Slipped into the middle of the proposed guidance is a section emphasizing that not only will the National Labor Relations Board come after you as an employer for unfair labor practices if you fire someone for discussing their wages, but that the EEOC might pursue a claim against you also. The EEOC said that reprisal for discussing compensation may violate the retaliation provisions of laws it enforces, such as the Equal Pay Act (requiring that similarly-situated women be paid the same as men for the same work) or Title VII (prohibiting discrimination on the basis of race, gender, religion, etc.).
All employers should review their current written employment policies to assure that any statement prohibiting wage discussions among coworkers has been removed. In addition, employers must not fire, demote, cut the wages or hours of or otherwise retaliate against an employee who discloses his/her compensation package with coworkers or others, whether shared verbally, by showing another person the pay stub or even by posting information about any worker’s pay on social media.
Even if your HR department is on top of things, some of the policies in your employee handbook probably are now unlawful. Confidentiality policies, professionalism policies, employee conduct policies, solicitation policies, conflict of interest policies, social media policies, and others have come under intense scrutiny by the National Labor Relations Board (“NLRB”) in the last six months. The result could be an unfair labor practices claim filed against your company, even though your company is not unionized. Continue reading NLRB Crackdown on Employee Handbooks→
The National Labor Relations Board ruled last week that two unrelated companies may be held to be joint employers of an employee who works for just one of the companies. Browning-Ferris Industries of California, 362 NLRB No. 186 (August 27, 2015), ruled that unrelated companies may be joint employers even if one employer has no power to hire, fire, supervise or determine the pay of an employee of the other employer.
The NLRB says that it “will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority”.
In other words, if you as a business owner contractually could say anything to your subcontractor about the work you want performed by the subcontractor’s employees, then you can be jointly liable to those employees if any of the subcontractor’s employment practices go awry, even if you never actually exercise any control over your subcontractor’s employees. Continue reading Employers Face “Joint Employer” Liability with Unrelated Companies→
Is your employee free to post a Facebook rant about one of your supervisors that says, “Bob is such a nasty M___ F___ don’t know how to talk to people!!! F___ his mother and his entire f___ing family!!! What a loser!!! Vote YES for the UNION!!!”?
Many of my West Texas employers would fire the employee on the spot for that Facebook post. But if you called an employment attorney, you would be advised against that termination because the National Labor Relations Board (NLRB) just decided last month that the employer involved in this mess had to reinstate the foul-mouthed employee and pay him lost wages.
The NLRB reasoned that the employee’s vulgar rant was “protected, concerted activity” protected by the federal act relating to the formation of unions. The NLRB noted that the harassment policy in the company’s handbook didn’t prohibit vulgar or offensive language, even though that policy was cited as the basis for the discharge. No employee had ever been fired by this employer before for obscene language. In addition, the company was in the middle of an election to decide if the workplace would be unionized.
However, even if your workplace will never be unionized, your actions as an employer can be scrutinized on the basis of employees engaging in “protected, concerted activity” to improve their pay and working conditions. For a summary of the cases that the NLRB has pursued against non-union employers, see the NLRB’s new website dedicated to their enforcement of that law. http://www.nlrb.gov/rights-we-protect/protected-concerted-activity
The NLRB has also been very busy telling non-union employers what can and can’t be in an employee policy manual. On March 18, 2015, the NLRB’s general counsel released a memo concerning those employment policies that the NLRB believes have a “chilling effect” on employees’ rights to engage in protected activities. http://www.nlrb.gov/reports-guidance/general-counsel-memos