Inconsistent discipline leads to reinstatement of employee fired for “throat slashing” motion.

Zero tolerance policy

Can an employer fire an employee who allegedly makes a throat slashing motion to a co-worker who interprets the motion as a threat?  According to a recent NLRB decision, maybe not. Nichols Aluminum, LLC and Teamsters Local Union No. 371, Case No. 25-CA-08260, august 18, 2014.

Bruce Bandy has been employed since at least 1978 by Nichols Aluminum, which operates aluminum casting and finishing plants.  Bandy, a longtime Union member, participated in a union-initiated strike on January 20, 2012.

At the time of their return to work, Bandy and the other strikers were asked to sign a written “promise” not to strike again over the “same dispute,” which was not further defined. Bandy agreed to the pledge. In addition, and in a post-strike meeting with employees, management emphasized certain company policies, including its “Violence in the Workplace” policy, which prohibited “Harassing, disruptive, threatening, and/or violent situations or behavior by anyone.”

Two weeks after his return from striking, Bandy was fired for a violation of the company’s “zero tolerance” policy concerning threats and harassment. The incident that led to the firing occurred when Bandy was walking next to a forklift being driven by an employee who had not participated in the strike. That employee honked the forklift horn a few times at Bandy; Bandy then looked at the driver and brought his hand across his neck with his thumb pointing up in what the driver construed as a “cut throat” gesture.

The driver reported Bandy’s gesture to HR, and to the Plant Manager and Bandy’s supervisor. When later questioned about the incident, Bandy denied having made the gesture, and said that he was “merely scratching his throat.” Bandy was suspended and was discharged two days later.

The Union filed an unfair labor practice charge, and a complaint was filed against the Company alleging a violation of Section 8 of the National Labor Relations Act, stating that Bandy had been fired because he engaged in union activity when he participated in the strike. The case was heard by an Administrative Law Judge (ALJ) who found that the situation presented “a close call,” but that the evidence did not show that the Company engaged in disparate treatment of Bandy when it fired him for a violation of its zero tolerance policy.

However, upon review by a three-member panel of the National Labor Relations Board (NLRB), that decision was reversed, and the panel found that Bandy’s firing violated the NLRA. That decision was based primarily on the fact that the Company’s response to other violations of the zero tolerance policy; the Company did not consistently discharge employees, even for relatively severe misconduct, and actually rehired an individual after firing him for cleaning and loading a gun in the workplace.

The Company’s inconsistent response to workplace violence issues, coupled with the short two-week period between the end of the strike and Bandy’s firing, allowed the Board to find that because Bandy’s firing did not “conform to an established disciplinary practice,” the actual reason for the firing was Bandy’s participation in a lawful work strike.

The penalty imposed by the NLRB included Bandy’s reinstatement to work with full seniority, removal of the disciplinary action from his personnel file, payment of lost wages and benefits, and the posting of a Notice setting out the decision and employee rights provided by the NLRA, along with an electronic link to the Board’s full decision.

The issue of concern to employers raised by this decision is whether or not employment decisions will be second-guessed by governmental agencies or courts.

Typically, an employer’s decision to hire, fire, or discipline an employee will not be reversed by an agency or court unless that decision is based upon illegal principles. The questions that is facing employers more and more frequently is where that line is being drawn, especially in recent decisions like this one. With respect to activity that is suspect under the NLRA, the line clearly continues to move and is something to which employers must continue to pay attention.

This case also is a clear example of the ramifications of inconsistently applying company policies. Had the Company been more consistent in its application of the zero tolerance policy, the Board would not have been able to point to it as evidence of disparate treatment in Bandy’s situation.

Asking coworkers for assistance in supporting legal claim may constitute concerted activity under the NLRA.

Helping hand black & white

Most employers are aware that Title VII of the Civil Rights Act protects individuals from harassment and discrimination, and further protects them from filing claims alleging such harassment or discrimination. However, many employers are not aware that Section 7 of the National Labor Relations Act (NLRA) also protects employees who attempt to garner support for a potential claim related to employment.

To be protected under Section 7 of the NLRA, an employee’s conduct must be both “concerted” and engaged in for the purpose of “mutual aid or protection.”

Recently, a National Labor Relations Board panel found that an employee’s solicitation of her co-workers for assistance with her possible sexual harassment claim fell within the protection of Section 7, in spite of the fact that the employee did not intend to pursue a joint complaint or include others in her complaint. Fresh & Easy Neighborhood Market, Case No. 28-CA-064411 (August 11, 2014).

Margaret Elias worked as a grocery store cashier. In August 2011, Elias asked her supervisor whether she could participate in certain on-the-job training, known as “TIPS.” Elias was told to write a note on the whiteboard in the breakroom to remind the supervisor of her request. She did so, only to find that on the following day, someone had changed the word “TIPS” to “TITS,” and had added an unpleasant illustration to the note, as well.

Because employees were not permitted to carry cameras, Elias copied the whiteboard picture and message onto a piece of paper, which she then asked three of her fellow employees to sign so that she could file a sexual harassment complaint. All three did so.

Once management became aware of the whiteboard issue, its Employee Relations Manager was directed to investigate the incident. During that investigation, Elias was questioned as to why she obtained signatures from the three co-workers, and was asked not to obtain further statements, so that the incident could be fully investigated by the company.

Upon completion of the investigation, the company concluded that the whiteboard alterations were inappropriate. The individual who made the alterations was disciplined, and Elias was told of the decision and was informed that she would be protected against retaliation.

Subsequently, Elias filed an Unfair Labor Practice (ULP) charge, alleging: (1) that the company handbook’s confidentiality/non-solicitation policy was overly broad to the extent that it could be viewed as restricting Elias’ ability to ask others to support her potential claim of sexual harassment; and (2) that the company unlawfully tried to restrict Elias’ actions further when it instructed her not to obtain additional statements from other employees while the investigation was pending.

Although an Administrative Law Judge determined that neither of Elias’ claims were supportable, a panel of National Labor Relations Board members reversed the decision as to the first claim, finding that Elias’ actions constituted “concerted” activity taken for “mutual aid or protection” and, therefore, was protected under Section 7 of the NLRB.

In its analysis of Elias’ actions, the Board defined both elements of a Section 7 claim.  It explained that “concertedness” is “not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed.” That is, the solicited employees do not have to join that individual’s cause, or even agree with the soliciting employee, in order for the activity to be concerted under the NLRA. Therefore, under the rationale used by the Board, a request to a coworker to act as a witness or to provide support for a claim related to an individual’s employment may be protected concerted activity, and restriction of that activity – or a policy perceived to restrict that activity – could subject an employer to legal liability.

The Board then went on to discuss the concept of “mutual aid or protection” and determined that even when an employee takes a concerted action that ultimately may benefit her more than others, or does not make explicit the mutual interests shared between her and other employees, her action still may be for mutual protection. In enacting Section 7, Congress “created a framework for employees to ‘band together’ in solidarity to address their terms and conditions of employment with their employer.” By asking for assistance from other employees to raise issues to management, an employee is – according to the Board – “requesting that [her] coworkers exercise vigilance against the employer’s perceived unjust practices,” which results in the mutuality of interest sufficient to trigger Section 7 protection.  

The fact that two of the 5-member panel dissented from this decision indicates that the rationales being used in these recent cases is beginning to cause concern, even among Board members themselves.

Employers should be vigilant in reviewing employee complaints and should look not only at the substantive (harassment, discrimination, wrongful termination) claim, but at the method by which the complaint is being made, to assure that no artificial barriers are being put in the way of concerted activity that can be argued to have been taken for the purpose of mutual aid or protection of employees.

NLRB continues to criticize employer restrictions on employees’ use of confidential information.

confidential files

In another of the increasingly frequent decisions by the National Labor Relations Board critical of employers’ policies and handbook provisions, a Board panel recently determined that the confidentiality rule included in an employer’s “Code of Business Conduct” was overly broad and restricted employees’ right to engage in concerted activities, a restriction in violation of Section 7 of the National Labor Relations Act (NLRA). Fresh & Easy Neighborhood Market, Case Nos. 31-CA-077074 and 080734 (July 31, 2014). 

After the United Food and Commercial Workers claimed that certain language in an employer’s confidentiality rule interfered with employees’ rights to engage in concerted activities for mutual benefit, an NLRB Regional Director issued a complaint against the company. An Administrative Law Judge (ALJ) found that the subject language did not constitute a prohibition on concerted protected activity and therefore did not violate the National Labor Relations Act (NLRA). The NLRB’s General Counsel filed exceptions to that decision, and a three-member panel was appointed to review the decision.  

The Board panel reviewed a provision entitled “CONFIDENTIALITY AND DATA PROTECTION,” which was one part of a more extensive Code of Business Conduct available to employees on the company’s website. The 20-page Code discusses a range of topics, including ethical considerations, equal employment opportunity, and unacceptable employee behavior.  

The section reviewed by the NLRB opens by stating that the company has “an important duty to our customers and our employees to respect the information we hold about them and ensure it is protected and handled responsibly.”  The section then goes on to list specific Do’s and Don’ts – including the following “Do”: 

  • Keep customer and employee information secure. Information must be used fairly, lawfully and only for the purpose for which it was obtained. 

The Board panel found that the company’s prohibition on sharing employee-related information was “not adequately limited by context” and that employees could reasonably believe that the company viewed information regarding the terms and conditions of employment as confidential and not to be shared. In spite of a strong dissent by one of the three panel members, the Board reversed the ALJ’s dismissal of the complaint and found that the challenged rule was unlawful. 

In the past year, the NLRB has criticized and struck down various handbook provisions including “at-will” disclaimers, social media policies, mandatory arbitration provisions, and requirements to keep internal investigations confidential. In each of those cases – as in this case – the Board required rescission, revision, or redrafting of the policies at issue and in addition, and required the affected employer to post at its facilities – nationwide, in this case – copies of a “Notice to Employees” that begins with the words: 

“The National Labor Relations board has found that we violated Federal labor law and has ordered us to post and obey this Notice.” 

The Notice, which is to remain posted for 60 consecutive days and also is to be distributed to employees electronically, goes on to say (in this format):

 FEDERAL LAW GIVES YOU THE RIGHT TO                                                                                             

             Form, join, or assist a union

            Choose representatives to bargain with us on your behalf

            Act together with other employees for your benefit and protection

            Choose not to engage in any of these protected activities.

 The Notice provides an Internet link to obtain the Board’s decision, and an address and phone number by which to do the same. As an indication that the Board is taking advantage of every available electronic resource, the Notice also includes a QR code which employees can use to obtain an immediate link to the decision in the matter on their smart phones.

 Most troublesome in this case is the footnote in which the Board states its finding that the company’s repudiation and revision of the questioned policy, which occurred prior to the actual complaint in this matter, was insufficient to overcome the policy’s illegality. In an attempt to resolve the matter prior to the complaint, the company had added a sentence to the rule to state that:

 “This policy does not limit nonsupervisory employees’ rights to engage in protected activities under the National Labor Relations Act, including the right to share information related to terms and conditions of employment.”

 According to the Board, the company’s action was insufficient, because:  “. . . the Respondent did not admit wrongdoing or assure employees that it would not further interfere with their Section 7 rights. In addition, because the Respondent waited over 2 years to revise the rule, and did so only 10 days before issuance of the complaint, its attempted repudiation was not timely.” 

This decision adds to the uncertainty that surrounds the Board’s decisions regarding handbooks and policies. The varying rationales used by the Board in its many recent decisions do not provide a specific methodology for employers that want to and are willing to deal with these issues. Some decisions provide specific language for a “savings clause” that a company may use to defend against NLRA violations, but other recent NLRB decisions are critical of the same or similar language. In this case, the Board did not criticize the language used by the company in its effort to repudiate and revise the policy – which is part of the goal of Board action in these cases – but instead, criticized the timing of the effort.

 Such inconsistency underscores the importance for employers to remain knowledgeable and up-to-date on this rapidly developing issue. As a first step, employers should carefully and objectively review handbooks and related company policies to assure that concerted activity is not precluded, either directly or by implication. Further, the mere presence of a “savings clause” may not be sufficient to protect the company from liability, if the clause is not clear, specific and proximate to the provision that it affects. In addition, and based on this case, efforts to repudiate or revise a policy should be done at the soonest time after learning of its possible violation of the NLRA.

Pregnant employee terminated because of upcoming lifting restrictions may have claim for “anticipatory discharge.”

boss firing pregnant empoyee

One federal court – the U.S. District Court for the Northern District of Illinois - recently reviewed a case in which a pregnant employee was terminated after informing her employer that she would be subject to a lifting restriction beginning at the 20th week of her pregnancy. Although the employee was only in her 15th week of pregnancy, she was terminated on the same day that the employer was informed of the upcoming restriction. A federal district court has allowed her claim of “anticipatory discharge” to move ahead for a jury trial. Cadenas v. Butterfield Health Care II, Inc., N.D. Ill., No. 12-c-07750, July 15, 2014.

In September 2011, Araceli Cadenas began working as a Certified Nursing Assistant (CNA) at Meadowbrook Manor, a nursing and rehabilitation facility in Naperville, Illinois. The CNA position is physically demanding, and requires pushing, lifting, turning, and re-positioning patients. Therefore, the CNAs were required to pull, push, or lift at least 20 pounds in order to qualify for the job.

Although Meadowbrook has a light-duty policy, that policy is limited strictly to employees with work-related injuries – no employee has been assigned to light duty for a non-work-related injury, including pregnancy limitations, since at least 2001.

In early 2012, Cardenas became pregnant. On May 7, 2012, Cadenas provided to Meadowbrook’s Human Resource (HR) Director, Joan Soppi, a note from a physician. According to the note, Cadenas was restricted and could do “no lifting, pushing, pulling over 20 lbs.” After receiving that information, Soppi stated that if Cadenas did not provide a note rescinding the lifting restriction, the first note would be considered a resignation letter because Meadowbrook doesn’t “put people on light duty who are pregnant.” Further, because Cardenas had worked at Meadowbrook for only eight months, she was not eligible for FMLA leave (which requires 12 months of employment).

Cadenas then obtained a second note from her doctor, which stated that the lifting restrictions would not be imposed until roughly five weeks later, beginning on Cardenas’ 20th week of pregnancy. However, when Cardenas attempted to return to work on May 17, her name had been removed from the schedule. Although Cardenas was not restricted from her job duties on that date, a “Personnel Change of Status” form was filed on her behalf, listing “Resign” as the termination type. The form also stated that Cardenas “cannot work full duty CNA position due to pregnancy with doctor note restriction.”

Cadenas then filed a lawsuit alleging pregnancy discrimination; Meadowbrook filed a motion for summary judgment, arguing that Cadenas was not terminated because she was pregnant, but rather because she was unable to perform the required duties of her job.

The court stated initially that “Meadowbrook was entitled to fire Cardenas as of the 20th week of her pregnancy when, it is undisputed, she would no longer be able to do her job effectively.” That statement was based on the fact that there was no evidence that Meadowbrook applied its light duty policy inconsistently to pregnant and non-pregnant employees. The court found therefore, that Meadowbrook’s “neutral policy is not evidence of [pregnancy] discrimination.”

However, the court then addressed the question of whether – as a matter of law – Meadowbrook could terminate Cardenas at 15 weeks of pregnancy, before the actual restrictions took place. The court, quoting a 1999 Seventh Circuit decision, held that in that instance, Meadowbrook could not terminate Cardenas “simply because it believes pregnancy might prevent the employee from doing her job.” There was no evidence of any business reason against allowing Cardenas to stay on until her restrictions went into effect – in fact, the court held that there was “no evidence that Cardenas’ restrictions were to take effect during a particularly critical time for Meadowbrook,” or that any business-related reason existed for removing Cardenas from her position prior to her actual restriction.

According to the court, the factual evidence (including the timing of the discharge, the absence of any nondiscriminatory business reason for that discharge, and the HR Director’s statement that Cardenas could not work because of her pregnancy) permits an “inference of discrimination” based on the anticipatory discharge and, therefore, Meadowbrook’s motion asking the court to dismiss the case was denied.

Based largely on the EEOC’s July 2014 guidance on pregnancy discrimination, employers are becoming more aware of their obligations related to pregnant employees, and of the overlap between the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). This case is a situation in which that overlap ultimately could result in legal liability for Meadowbrook, which discharged Cardenas in anticipation of restrictions, and without engaging in the interactive process necessary to determine whether Cardenas was, in fact, limited in her ability to do her job at the specific time of her termination.

Employee’s failure to apply for position dooms discriminatory hiring claim.

pirate applicaiton

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against any individual with respect to the terms and conditions of employment because of certain protected characteristics, including gender. In order to support a claim under Title VII, an individual must point to an “adverse employment action” that was taken again him or her because of the protected characteristic.

The 8th U.S. Circuit Court of Appeals held recently that the failure to apply for a particular position, in the absence of evidence of “gross and pervasive discrimination” that would deter applicants from applying for the job, and without “every reasonable attempt to convey” interest in that job removes the matter from the protections of Title VII. Lunceford v. Audrian Health Care, Inc., 8th Cir., No. 13-1720 (June 30, 2014).

David Lunceford is a registered nurse with experience in both the Critical Care Unit (CCU) and Post Anesthesia Care Unit (PACU) of Audrian Medical Center in Missouri. During his employment as a part-time PACU nurse, Lunceford was told by the clinical coordinator of the hospital’s PACU and the Operating Room (OR) that she wanted to fill an open OR nurse position with a female nurse “in order to have the right mix of patients to staff based on gender.”

Subsequently, the Equal Employment Opportunity Commission (EEOC) filed a complaint on Lunceford’s behalf, alleging that by refusing to consider Lunceford for a vacant OR position, Audrian violated the law.  That complaint was dismissed by the lower court, which found that because Lunceford did not apply for the OR position, there was no actual adverse employment action upon which to base a Title VII claim.

On appeal, the Eighth Circuit reviewed the background facts and found that:

  • Audrian allows nurses to transfer between nursing units in the various departments and posts vacancy notices to allow current employees to apply for transfer.
  • To apply for transfer, an employee must complete a Request to Transfer form, after which the Human Resources (HR) Department reviews the applicant’s file to      ensure that the employee meets the qualifications for the position.
  • If HR approves the transfer, the application is routed to the relevant department director and executive administration for approval.
  • After departmental/administrative approval, the transfer is deemed effective, although it may take up to 30 days for the formal transfer to occur.
  • Once the employee obtains administrative approval for the transfer, he or she is not eligible to transfer to another position except as provided by hospital policy.
  • In March 2010, Lunceford completed a Request for Transfer from his then-current position in PACU to an open position in CCU.
  • On that same day, HR approved the request on March 26, Linda Brooks, clinical coordinator for both CCU and the OR, approved the request, and Lunceford was scheduled to start in CCU beginning on April 22, 2010.
  • On April 26, 2010, Lunceford – who had no prior OR experience – asked Brooks if she would consider him or train him for an open OR position, which required specialized, specific job knowledge.
  • Brooks responded that she wanted to fill the open OR position with a female nurse, in order to have a “right mix of patients to staff based on gender.” (Audrian has a policy that gives patients the right to have a health care provider of the same gender in the room during treatment.)
  • Lunceford never filled out a Request for Transfer form for the OR position, nor did he follow up further regarding the position. Instead, the EEOC brought the legal action on his behalf.
  • The district court granted summary judgment in favor of Audrian, dismissing Lunceford’s case.

After review, the Eighth Circuit upheld the lower court’s decision granting summary judgment to Audrian. It found that the EEOC failed to establish direct evidence of discrimination, and that the EEOC also had failed to establish the prima facie case of discrimination necessary to support indirect evidence of discrimination. In both of those situations, the EEOC would have had to show an “adverse employment action,” and could not do so.

The Court concluded that Lunceford did not suffer an adverse employment action because he never formally applied for the OR position and that further, Lunceford was unable to show that there was any overt discrimination to keep him from doing so. In fact, although the OR vacancy was the first of the two open positions to be posted, Lunceford did not express interest in it until nearly a month after he requested (and was approved for) the transfer to PACU. Based on those facts, Lunceford was unable to show that he made “every reasonable attempt” to convey any actual interest in the OR position.

While this case comes to a commonsense conclusion – one cannot complain not to have been hired for a position for which one never actually applied – it also reminds employers that there are exceptions to that premise, and that individuals who are able to make a showing of a discriminatory atmosphere that is severe enough to dissuade hiring, transfer, or promotion, may be able to support a claim of discrimination based upon a position for which there was no formal application.

Congratulations! It’s a . . . pregnancy discrimination guidance.


The Equal Employment Opportunity Commission (EEOC) has issued its first comprehensive update of a 1983 Compliance Manual chapter on the subject of the Pregnancy Discrimination Act (PDA) and related issues. The Guidance, which was not submitted for public comment prior to its issuance, also discusses the application of the Americans with Disabilities Act (ADA), as amended in 2008, to individuals with pregnancy-related medical impairments, consistent with the EEOC’s Strategic Enforcement Plan priority of addressing the overlap between the PDA and the ADA.

The document – which, at over 30 pages of text and 181 footnotes is more than a “quick read” – focuses on four areas: an overview of the PDA’s statutory protections; the ADA’s protections for pregnant workers; other issues affecting pregnant workers (including the Family and Medical Leave Act, caregiver laws, break times for nursing mothers, and applicable state laws); and “best practices” for employers.

The EEOC’s intended take-aways from the initial section are clear:

  • The PDA’s protections extend beyond pregnancy, and include potential/intended pregnancy (i.e., fertility treatment), past pregnancies, caregiving responsibilities, and lactation/breastfeeding;
  • An employer is obligated to treat a pregnant employee the same as it treat others similarly unable to perform their jobs, whether by modifying job tasks, reassigning the employee (including to light duty), or providing leave;
  • Harassment, disparate impact, and disparate treatment all are prohibited under the PDA. 

The second section of the Guidance details the EEOC’s view of pregnancy-related conditions as disabilities. It includes the specific statements that “[u]nder the ADAAA, there is no requirement that an impairment last a particular length of time to be considered substantially limiting,” and that “the ADAAA includes the operation of bodily functions [including the reproductive system] as major life activities.” These statements are followed by series of examples that illustrate the EEOC’s view of what does – and does not – constitute a disability with regards to pregnant women, and a list of “examples of reasonable accommodations that may be necessary for a disability caused by pregnancy-related impairments.”

The third section of the Guidance mentions the FMLA, Executive Order 13152 (prohibiting discrimination in federal employment based on an individual’s status as a parent), mandated break time for nursing mothers, and the interplay of state laws wither federal pregnancy discrimination obligations. In that section, the EEOC quotes a 1987 California case in which the court stated that Congress intended the PDA to be a “floor beneath which pregnancy disability benefits may not drop – not a ceiling above which they may not rise.” The import is clear: employers must comply with all laws, including state and local, regarding pregnant employees, even if those laws are more expansive than the PDA itself.

In its final section, the Guidance addresses five separate topics, and provides guidelines to assist employers “to reduce the chance of pregnancy-related PDA and ADA violations and to remove barriers to employment opportunity.” In other words, the EEOC lists the areas in which it will be looking in the event that a charge of discrimination is filed against an employer. The five areas, along with EEOC suggestions for employer action, are:

  • General Policy Requirements – developing, disseminating and enforcing a strong policy, and training managers on that policy;
  • Hiring, Promotion, and Other Employment Decisions – focusing on job-related qualifications and assuring that job opportunities are communicated to all eligible employees;
  • Leave and Other Fringe Benefits – assuring that there is no disproportionate impact on pregnant workers, and reviewing policies periodically to confirm that;
  • Terms and Conditions of Employment – monitoring compensation, light duty, reassignment, employee training, and access to workplace networks to assure equal opportunity for participation by pregnant employees; and
  • Reasonable Accommodation – having a process in place for “expeditiously considering reasonable accommodation requests . . . and for granting accommodation where appropriate,” and training managers to recognize such requests.

Of the issues addressed in the Guidance, the one that has received the most attention is the EEOC’s assertion that employers are required to treat a pregnant employee (who temporarily is unable to perform the functions of her position) in the same manner that it treats other employees similar in their ability or inability to work. According to the EEOC, such treatment could include modified tasks, alternative assignments (including light duty), or fringe benefits in the form of disability leave or leave without pay.

The reason for the attention is the fact that recently, the U.S. Supreme Court agreed to hear a case (Young v. UPS, Inc.) during its 2015 term that is centered on the question of whether pregnant women are entitled to light duty simply because of their pregnancy, absent any other physical impairment. Because that case has not yet been decided, and because there is a split among the federal court circuits on the issue, the EEOC’s published guidance is viewed by many (including two of the five EEOC Commissioners, who dissented from the language of the Guidance) as premature.

However, the primary take-away from this Guidance is that the EEOC is training its attention on the issue of pregnancy discrimination, and is providing a roadmap for the path that it plans to take to review and investigate employers against whom PDA and ADA complaint are made.  Employers would be wise to review the Guidance, and its associated Q&A page, and to consider the “best practices” suggested, because although the Guidance does not have the force of law that a statute does, it will be viewed by courts as an expression of the EEOC’s interpretation of the applicable statutes. Small business should review the EEOC’s Fact Sheet for Small Businesses that accompanies the Guidance.

Employee’s profanity-laced outburst may not preclude protection under the National Labor Relations Act.

Swearing boy

Here are the basic facts of a case (Plaza Auto Center, Inc. and Nick Aguirre, Case 28-CA-022256, May 28, 2014) that has raised a question regarding the inherent conflict between “protected activity” under the National Labor Relations Act (NLRA) and insubordinate behavior by employees:

• Nick Aguirre became employed by Plaza Auto Center in Yuma Arizona in August 2008 as a car salesman and held that position for two months;

• During his brief tenure, he complained to both fellow employees and company managers about company policies, breaks, and compensation;

• On October 28, 2008, Aguirre was called to a meeting with Tony Plaza, the owner of Plaza Auto Center, and two sales managers;

• Plaza began the meeting by telling Aguirre that he was “talking a lot of negative stuff” and asking too many questions;

• Plaza told Aguirre that he should not be complaining about pay, and that if Aguirre didn’t trust him, he need not work there;

• At that point, Aguirre lost his temper, and in a raised voice called Plaza a “f***ing crook” and an “a**hole,” and told Plaza that he was stupid and that no one liked him;

• During his tirade, Aguirre stood up in the small office, pushed his chair aside, and told Plaza that if Plaza fired him, Plaza would “regret it.”

Plaza then fired Aguirre. In an evidentiary hearing on the charge filed by Aguirre, an Administrative Law Judge (ALJ) found that Plaza Auto Center had violated the NLRA by inviting Aguirre to quit in response to his protests regarding working conditions. However, the ALJ also found that Aguirre lost the protection of the NLRA by his “belligerent” behavior in speaking to Plaza in “obscene and personally denigrating terms accompanied by menacing conduct and language.”

The Acting General Counsel appealed the decision to the full National Labor Relations Board (NLRB), which determined that Aguirre’s conduct was not severe enough to cause him to lose the NLRA’s statutory protections and, therefore, that his firing violated the Act.

At the point, Plaza Auto Center appealed to the 9th U.S. Circuit Court of Appeals, which found that Aguirre’s behavior was insubordinate and “counted against” his retaining the Act’s protection. It found that the NLRB’s rejection of the ALJ’s findings that Aguirre’s behavior was “belligerent,” “menacing,” and “at least physically aggressive,” created an internal inconsistency in the Board’s decision. It then remanded the case back to the NLRB for further review.

On re-review, the NLRB determined that while Aguirre’s behavior was obscene and personally denigrating, other factors “compellingly favor Aguirre’s retaining the protection of the NLRA.” First, the Board found that Aguirre’s conduct was not menacing, physically belligerent, or aggressive, and that “it seems clear” that Aguirre’s statement that Plaza would “regret it” if he fired Aguirre was a simple threat of legal action, and not a threat of physical violence.

As for the ALJ’s finding that Aguirre’s action in pushing his chair aside was menacing, the Board found that in Plaza’s small office, “it likely would have been difficult for Aguirre to stand up without pushing his chair aside.” Also, because Aguirre had no prior history of violent or threatening behavior (in the two months within which he worked at Plaza Auto Center), and because there was “no evidence that Aguirre tried to hit Plaza, or even made a fist,” the Board rejected the ALJ’s finding that Aguirre’s behavior was menacing, physically aggressive, or belligerent.

The Board’s decision that Aguirre’s behavior did not cause him to forfeit the protections of the NLRA are based – according to the Board – on a balancing of an employee’s right to engage in concerted activity and an employer’s need to maintain order and respect in its establishment.

Employers should take notice of this case when making decisions to discipline or fire an employee who has complained about the terms and conditions of employment, even if that employee uses obscenities and acts in what could be viewed as a threatening manner.

However, there is one factor which is mentioned numerous times in the Board’s opinion, and which could provide some additional direction to employers: Aguirre’s outburst occurred immediately after Plaza’s inference that Aguirre could quit if he didn’t like the company’s policies. Labeling that comment a “provocation” of Aguirre’s reaction, the Board determined that Aguirre’s firing was in violation of the NLRA.

The remedy for Plaza Auto Center’s violation of the Act was immediate reinstatement of Aguirre with back pay and benefits paid to him, along with reimbursement for any “adverse tax consequences” of that repayment; Aguirre’s personnel file was to be cleaned of any reference to his firing, and the company we required to post a Notice which requires a link and a QR code to the Board’s full decision, along with statements related to employees’ right to form a union and engage in activities protected by the NLRA.

Employers take note: Plaza’s implication that he was refusing to change the company policies related to wages and breaks, and his statement that Aguirre may as well leave if he was dissatisfied clearly worked against Plaza in this circumstance. The Board viewed Plaza’s statement as a refusal to hear Aguirre’s concerns or give them any attention, and viewed the firing as a reaction to Aguirre’s protected activity in making the complaints. This case provides one piece of usable advice to managers: a don’t-let-the-door-hit-you-on-the-way-out statement in response to an employee’s concerns related to working conditions can create unintended risk and liability under the NLRA.


Employment Law Carnival – The A to Z List

Plate 2

Law Partners Maria Danaher, Editor of Employment Law Matters, and Mary Wright, Guest Blogger (both of Ogletree Deakins), offer up this month’s Employment Law Carnival.

Here is our A to Z list of legal pickings from around the ‘Net.


Slide1is for the ADA

Eric B. Meyer, The Employer Handbook, The Firefighter Afraid of Fighting Fires Loses His ADA claim.  Right, you guys? Right?!?


Slide2is for Basketball Bargaining

Nate Duncan, The Team Rebounds, NBA Collective Bargaining Agreement Flashcards.


Slide3is for Car

Chris Ceplenski, Compensation and Benefits Daily Advisor, How to Calculate Employee Reimbursements for Mileage Expenses


 Slide4is for Diversity

Heather Bussing,  HR Examiner,  Diversity: Tampering with Certainty


Slide5is for English Only Policies

Philip Miles, Lawffice Space, “English Only” – Discrimination or Legit Job Requirement?


Slide6is for Freedom of Speech

Stuart E. Rudner, Rudner McDonald Blog,  Freedom of Speech Doesn’t Mean Freedom from Consequences


Slide7is for GINA

Latosha Dexter, HR Professional Magazine, The Genetic Information Nondiscrimination Act – Takes Steps Now to Ensure Compliance


Slide8is for Harassment

Shaun Bernstein, Rodney Employment Law Blog, No Place for Discrimination:  Workplace Harassment and What to Watch For


 Slide9is for Identity Theft

Mary Wright, Blogging for Jobs, With Big Data Comes Big Responsibility:  Protect Data on Your HRIS


Slide10is for Jokes

Charlice Hurst, Karen Macmillan and Thomas Watson, Ivey Business Journal, Deconstructing Donglegate:  Lessons from an HR Fiasco


Slide11is for Kinfolks

Kaitlyn Jakubowski, BT Currents, Flextime Consideration is Now Law in Some Places


Slide12is for LGBT

David Badash, The New Civil Rights Movement, Obama Executive Order is “Single Largest Expansion of LGBT Workplace Protections”


Slide13is for Minimum Wage

Christopher J. Near, Leigh M. Nason, Alfred B. Robins, Jur. And Dara L. DeHaven, Ogletree Deakins Blog, Your Guide to the Proposed Rules Under Executive Order 13658:  Setting a Minimum Wage for Federal Contractors


Slide14is for the NLRB

Lindsay M. Bouffard, Employment Essentials, The NLRB Doesn’t Like Your Attitude


Slide15is for Officer

Aarti Maharaj, The FCPA Blog, Does the Compliance Officer Own Corporate Character?


Slide16is for Punitive Damages

Randy J. Manilofff, LexisNexis Legal Newsroom, Punitive Damages:  Insurable in 38 States – The Sometimes Oversimplified Issue


Slide17is for Quota

Lyle Denniston, ScotusBlog, Opinion Analysis:  Affirmative Action – Up to the Voters


Slide18is for Recordkeeping

Ari Rosenstein, Small Biz HR Blog, Record Keeping Best Practices – A Quick Guide 


Slide19is for Sensitivity to Smells

Tiffani McDonough, The Legal Intelligencer, April Showers Bring May Flowers and Other Workplace Irritants: Must an Employer Provide a Fragrance-Free Workplace Under the ADA?

Slide20is for Time Keeping

Jennifer Palagi, California Public Agency Labor & Employment Blog, Favorable Decision For Employers Reinforces Importance Of Clear Policies Regarding Off-the-Clock Work


Slide21is for Unclothed

John Hyman,  Ohio Employer’s Law Blog: If You’re Caught Sunbathing Nude, On the Roof of Your Elementary-School-Employer, Don’t Sue for Retaliation


Slide22is for Violence

John S. Gannon, The Law @ Work, OSHA Clamping Down on Workplace Violence


Slide23is for Wage and Hour (Times 2!)

Brandon T. Willenberg, JD Supra Business Advisor, California Employers Catch One of Those Rare Wage and Hour Class Action Breaks form the California Supreme Court

Robin Shea, Employment & Labor Insider, Beware of Employees Too Eager to Please!


Slide24is for Xeroxed (or Copied) Trade Secrets

Jason T. Murata, John M. Tanski and Brooke J. Oppenheimer, Risk Management, Are Your Secrets Safe?


Slide25is for Youngster

Joe Ross, First Reference, Creating a BYOD Policy for Millennials


Slide26is for Zealot

Frederic Leffler, JD Supra Business Advisor, EEOC Issues New Guidance on Religious Garb and Grooming in the Workplace



And as Mary’s sainted mother would add –

And a “pinch to grow an inch!”  A little extra from the always refreshing Donna Ballman, Screw You Guys, I’m Going Home, The Criminalization of Employment Law.


Mary and Maria want to thank all their friends in Big Law, Little Law, Plaintiff’s Law, or downright No Law for all their contributions.  We like the fact that the Internet is making our legal community smaller every day.

Continued Employment is Insufficient Consideration for Non-Compete Agreement in PA.

This article was written by John H. Riordan, Jr. Of Counsel in Ogletree Deakins’ Pittsburgh Office.

In general, contracts “in restraint of trade” have been considered to be illegal. One exception under most state laws is the “Non-Compete Agreement,” wherein an employee agrees – typically upon being hired – not to compete with his/her employer for a reasonable period of time after that employment relationship ends. This restriction, however, typically is disfavored by the Pennsylvania Courts because it is viewed to limit the employee’s professional mobility.

Nonetheless, such agreements have been enforced where the Non-Compete Agreement has been entered into properly, where the restriction on an employee’s ability to work elsewhere is reasonable in prohibited territory and duration, and where the restriction is reasonably necessary for the protection of a legitimate business interest of the employer.

With the arrival of the Digital Age, when large amounts of data can be stored on a small, portable device, and with the corresponding shift in emphasis in the American economy to knowledge-based businesses, the use of Non-Compete Agreements has become relatively commonplace. The result has been an increase in litigation over the enforceability of these Agreements.

Contributing to that increase is the fact that there is no single “standard” form of non-compete clause. Instead, so long as the non-compete restraint is reasonable in duration and territorial reach, each employer, with an awareness of its own business needs, can script its own language. As a consequence, the controlling legal principles to be applied when evaluating the validity of these agreements have been developed by the Pennsylvania Courts over the last 50 years on more-or-less a case-by-case basis.

One of the controlling legal principles in the Non-Compete Agreement arena is the requirement that such an agreement be supported by “consideration.” Even where an employee is hired at-will – meaning that the parties have no agreement for a definite duration of employment, and that the employee can be terminated at any time, unless for a discriminatory reason – the Non-Compete Agreement is interpreted as a legally binding contract, so long as “consideration” exists.

The benefit to the employer from a Non-Compete Agreement is clear; and in the case where the employee is a new hire, the benefit to that employee clearly consists of the employment relationship itself. However, where the employee already is on the payroll, the benefit received for his or her agreement to limit future employment opportunities is less clear.

Over the years, Pennsylvania Courts have decided that merely allowing a current employee to continue in at-will job is not valid consideration for a promise not to compete. Instead, the employer must confer some additional benefit upon the employee (e.g., a raise) or a beneficial change in status (e.g., a promotion). However, in difficult economic times, or for small enterprises, this additional benefit may not make financial sense. Might there be a less expensive solution, a so-called “Easy Button”?

Within the last decade there have been two opinions from the U.S. District Court for the Western District of Pennsylvania suggesting that no consideration is necessary to support a non-compete with an existing employee if the agreement is in writing and contains certain specific language. These cases cite to the Pennsylvania version of the Uniform Written Obligations Act (“UWOA”), a 1927 law which provides that a written release or promise, signed by the person releasing or promising, will not be invalid or unenforceable for lack of consideration, if the writing also contains an express statement that the signer “intends to be legally bound.” This provision has been referred to as the “Easy Button.”

However, on May 13, 2014, a three judge panel of the Pennsylvania Superior Court disapproved of using the UWOA as the Easy Button. Socko v. Mid-Atlantic Systems of CPA, Inc., 2014 Pa. Super. LEXIS 702.

In that case, the Court made clear that an employer failed to provide any “fresh” consideration/beneficial change in status upon an existing employee in return for a new Non-Compete Agreement. There, the Court distinguished between non-compete contracts (disfavored by the law) and the more ordinary kind of contracts, and held that held that the Easy Button is insufficient consideration in circumstances where a non-compete agreement is required from an existing employee without additional actual consideration:

The reasons for this differing approach are clear, as restrictive covenants are disfavored in Pennsylvania because they are in restraint of trade and may work significant hardships on employees agreeing to them. For these reasons, our Supreme Court, as reviewed hereinabove, has held that only valuable consideration will support their enforcement, and has rejected as inadequate various forms of consideration that would support the enforcement of other types of contracts, including the benefit of the continuation of at-will employment, contracts under seal, and nominal consideration.

The Court further concluded that:

When the restrictive covenant is contained in the initial contract of employment, the consideration is the job itself. But when the restrictive covenant is added to an existing employment relationship, however, to restrict himself the employee must receive a corresponding benefit or a change in job status. Contractual language satisfying the UWOA does not provide the employee with any actual benefit, and thus cannot suffice as a form of consideration that is adequate to support the later enforcement of the covenant not to compete against the employee.

The employer in Socko has filed a request for re-argument with the Superior Court. If that request is denied, the employer then can request allowance of appeal to the Pennsylvania Supreme Court. Therefore, it may be several months until the panel’s decision is fully final. However, the panel’s opinion will be published and is precedential, meaning that unless vacated or reversed it will apply in both state and federal court cases in which Pennsylvania law provides the rule of decision.


OSHA and NLRB referral agreement could extend NLRB’s reach into workplace safety issues.

The Occupational Safety and Health Administration (OSHA) is an arm of the U.S. Department of Labor, and is the federal agency charged with the enforcement of legislation related to the health and safety of workers.

OSHA’s primary enforcement tool is the Occupational Safety and Health Act of 1970 (OSH Act). Section 11(c) of the OSH Act provides that:

“no person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.”

An employee who believes him- or herself to have been retaliated against under Section 11(c) of the OSH Act has 30 days after the alleged adverse action within which to file a charge with OSHA. According to OSHA, hundreds of such complaints are dismissed each year because the complainant has failed to file a timely charge.

The National Labor Relations Board (NLRB) is an independent agency of the U.S. government charged with investigating and remedying unfair labor practices.

Section 7 of the National Labor Relations Act (NLRA) provides the right to employees to “engage in concerted activities” for “mutual aid or protection.” Section 8 of the NLRA prohibits “unfair labor practices,” and allows an employee who feels that he or she has been adversely treated after engaging in protected concerted activity to file a charge within 180 days of the alleged adverse treatment.

In 1975, a Memorandum of Understanding (MOU) was signed by OSHA and the NLRB which outlined procedures for handling worker safety retaliation complaint filed with one or both agencies. That MOU provided that where a complaint was filed with both agencies, enforcement actions would be taken primarily by OSHA.

Since that MOU, the number of Section 11(c) complaints has continued to rise, and more and more of those complaints are being filed outside of the OSH Act’s 30-day limitation period.

In March of this year, the Acting Director of OSHA’s Directorate of Whistleblower Protection Programs raised the issue of untimely 11(c) complaints, pointing out the overlap between those complaints and NLRB Section 8 issues. Based on that overlap, he suggesting that OSHA refer complainants who have filed untimely OSH Act retaliation/whistleblower complaints under Section 11(c) to the NLRB, under that agency’s 180-day time limitation.

On May 22, 2014, an agreement was reached between the two entities in which OSHA agreed to advise all complainants who have filed or attempted to file an untimely Section 11(c) retaliation charge to contact the NLRB to inquire about filing an unfair labor practice charge under Section 8 of the NLRA.

The agreed-upon policy requires OSHA personnel to first discuss with the complainant his or her rights under Section 11(c) of the OSH Act, and make that employee aware of the fact that the untimely complaint will be screened out or dismissed.

After that, OSHA will advise the complainant of the right to file a charge with the NLRB, and of that agency’s 180-day time limit. Contact information will be provided regarding the appropriate NLRB field office. Closure letters for untimely OSHA complaints also will include this information.

It is of interest that while only claims regarding safety-related “concerted” activity actually are appropriate for referral to the NLRB, this resource-sharing agreement applies to all untimely retaliation claims to OSHA. However, given the nature of most safety-related issues, and the fact that they rarely apply to only one employee, it seems likely that the NLRB is going to view most, if not all, safety-related retaliation issues as precluding the banding together of employees and, therefore a potential violation of Section 8 of the NLRA. Another important point is that the protections offered by this arrangement apply to both unionized and non-unionized employers.

While this arrangement ostensibly was instigated by OSHA, it is another in a pattern of actions that has broadened the presence and effect of the NLRB in employment discrimination and retaliation issues.

According to John Artz, a Pittsburgh shareholder and member of Ogletree’s Workplace Safety & Health Practice Group, “As has already become apparent by its activism in other arenas, this Administration is toiling diligently for workers. We continue to see a greater emphasis on workplace safety enforcement with a more adversarial focus. What this agreement with the NLRB means is that even if OSHA dismisses a complaint as untimely filed, the issue may not really be over if the longer limitations period of the NLRA breathes new life into it.”