NLRB Judge Finds Firings Based on Facebook Posting Unlawful

HRWatchdog has frequently blogged on the increased activity by the National Labor Relations Board (NLRB) as it relates to employer discipline for social media postings made by employees. In the past year, the NLRB has seen an increase in the number of charges related to social media and has filed several complaints against employers who discharged employees for social media postings in which the employees complained about workplace conditions.

Employees, in both union and non-union workplaces, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activities. Such activities might include two or more employees discussing working conditions, pay or other work-related issues. The typical example of a protected activity is when employees gather around the water cooler to complain about their supervisor. These days, that water cooler conversation might take place online – on Facebook, Twitter or some other social media outlet.

There has been some uncertainty for employers as to when social media postings will be regarded by the NLRB as a protected concerted activity and when employers can and cannot take disciplinary action against employees for their social media postings. Last month, the NLRB's Office of General Counsel issued a report outlining some of the social media cases. The report detailed the outcome of the NLRB's investigation into these cases. The purpose of releasing the document was to provide guidance to labor law counsel and human resource professionals.

Now, for the first time, a NLRB Administrative Law Judge (ALJ) has weighed in on the issue after a full hearing. The ALJ ruled against a Buffalo non-profit organization and found that the organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.

An employee at Hispanic United of Buffalo, Inc. (HUB), a non-union employer, posted the following on her Facebook page: “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow employees how do u feel?” Several other HUB employees then went on Facebook and commented on the original post. These comments expressed negative opinions about Cruz’s criticism, defended employee job performance, and complained about working conditions. The comments were often sarcastic and some used profanity.

None of the posts were made during work hours and none were made using a work computer. After learning of the posts, HUB discharged the employees who had participated, claiming that the comments constituted harassment of Lydia Cruz, who was originally mentioned in the post.

The ALJ disagreed with HUB’s position and found that the Facebook discussion was protected because it involved a discussion among coworkers about the terms and conditions of employment, including job performance and staffing levels. The ALJ noted that expressions related to defense of job performance are a protected activity, especially where the employees could reasonably believe that they would need to defend their job performance to management.

The ALJ ordered reinstatement of the five employees and also awarded the employees back pay because they were unlawfully discharged.

The ALJ also found that the employees did not engage in any conduct that forfeited their protection under the NLRA. The ALJ noted that there was not a violation of HUB’s anti-harassment policy because there was no evidence that the complaining individual was harassed and no evidence that she was harassed based on a protected characteristic.

Cities Can Ban Grocery Store Layoffs

The California Supreme Court upheld a Los Angeles ordinance that forbids new owners of large grocery stores from laying off the existing workforce for 90 days after the new ownership takes over. California Grocers Assn. v. City of Los Angeles, (S176099, July 18, 2011).

The Supreme Court’s 6-1 decision reinstated the Los Angeles ordinance, which was originally enacted in 2005. The ordinance was blocked by the lower court’s earlier decision invalidating the ordinance. The ordinance, backed by organized labor, requires large grocery stores that go through a change in ownership to recognize a period of 90 days as an employee job vesting period during the ownership transition period.

This would require the new owners of large grocery stores to hire previous employees, excluding managers, for at least 90 days after the store reopens. Large grocery stores are defined as stores that are 15,000 square feet or larger. It is unknown at this time whether the ruling will be appealed to the U.S. Supreme Court.

The ordinance requires:

• The prior owner to prepare a list of nonmanagerial employees with at least six months employment.
• The new owner to hire from that list during the 90-day transition period.
  The new owner to only discharge the hired employees “for cause” during the transition period.
• The new owner to prepare a written evaluation of each employee’s performance at the end of the transition period.  
• The new owner to consider offering continued employment if the employee’s performance is satisfactory.

The ordinance does state that if the workforce is unionized, the union and the employer can agree on alternative hiring arrangements.

The cities of Gardena, Santa Monica and San Francisco enacted similar grocery worker retention ordinances. Worker retention ordinances for other fields of employment are also in effect in San Jose (airport business workers), Oakland (hospitality workers), Emeryville (hotel workers) and Berkeley (marina workers).

The lower court ruled that state law and the federal National Labor Relations Act pre-empted the ordinance. The California Supreme Court disagreed.

The one dissenting judge, Justice Grimes stated that the ordinance interferes with free market forces.  Also, Grimes said, “[t]he city’s ordinance requires a new grocery employer to … function during the important initial period of its operation with a work force it deems, for entirely legitimate reasons, unsuitable for its planned operations.”

Gail Cecchettini Whaley, Employment Law Editor/Staff Counsel

 

Religious Discrimination Suit Shows Need for Employer Awareness

On June 28, 2011, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against clothing retailer Abercrombie & Fitch. The lawsuit, filed in a Northern California federal court, claims that the company violated federal law when it fired a Muslim employee for wearing a hijab (religious head scarf).

According to the allegations, a 19-year-old Muslim woman was employed by Hollister (an Abercrombie & Fitch subsidiary) in San Mateo as an “impact associate,” primarily working in the stockroom. The employee was first asked to wear headscarves in Hollister brand colors, which she agreed to do.

Later, she was informed that her hijab violated Abercrombie’s “look policy,” an internal dress code. She was told she would be taken off -schedule unless she removed her headscarf while at work. She refused to take off the hijab, was suspended and later terminated. The EEOC seeks back pay, compensatory damages and punitive damages and injunctive relief.
 
Under federal and state law, employers must reasonably accommodate an employee’s sincere religious beliefs or practices. Employers are not required to reasonably accommodate religious beliefs if doing so would impose an undue hardship on the business, though employers should remember that undue hardship is a high burden and difficult for employers to meet. 

Further, valid safety-related reasons, such as hard-hat requirements, may allow employers to prohibit the religious garment. Reasonable accommodation may include modification of work practices, job restructuring, job reassignment, or allowing time off in order to avoid a conflict with religious observances. 

This lawsuit is the second the EEOC filed against Abercrombie & Fitch in the Bay Area over the company’s failure to accommodate workers who wear a hijab. In 2010, the EEOC filed a lawsuit concerning Abercrombie’s refusal to hire an applicant at the ‘abercrombie kids’ store in Milpitas due to the applicant’s headscarf.
 
The company’s ‘all-American look’ policy has been a focus of prior EEOC  litigation, resulting in $40 million paid in 2005 to a class of African Americans, Asian Americans, Latinos and women who were  either passed over for promotions or not hired at all.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

CalChamber members can educate themselves on religious discrimination on HRCalifornia.
Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial. 

Settlement in Facebook Case

On Monday, the National Labor Relations Board (NLRB) announced that it reached a settlement in a closely watched claim concerning social media in the workplace. Read the NLRB's press release for more details.

In this situation, the NLRB filed an unfair labor practice complaint against an employer who terminated an unionized employee after she made postings on her Facebook page that violated company policies.

Unfortunately, the terms of the settlement were not released. Employers should take note of the NLRB’s action and review company policies regarding use of social media in the workplace.*

By: Erika Frank

*Download this free white paper on social media in the workplace.

CalChamber members can learn how to create an employee handbook that addresses social media in the workplace, plus other important issues. Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.

New Email Option for WARN Notices

Employers may now submit their notices via email to the Employment Development Department (EDD) in accordance with Worker Adjustment and Retraining Notification (WARN) Act. Employers can email their WARN notices to the EDD by sending them to eddwarnnotice@edd.ca.gov.

The state and federal WARN Acts require you to send a plant closing notification to employees at least 60 days before anticipated separation, and you must also notify state and local governments. Failure to do so can subject you to substantial penalties.

The EDD's website offers instructions on how to submit WARN notices pursuant to California law.

Read the EDD's full announcement online. CalChamber members can visit HRCalifornia for detailed information about the state and federal WARN Acts. Not a member? Try HRCalifornia free.