Latest NLRB decision has employers seeing . . . Purple!

Purple computer

On December 11, 2014, the National Labor Relations Board (NLRB) stoked the fire that has been building around issues related to employees’ use of company e-mail for non-work-related issues. It did so when it held that the National Labor Relations Act (NLRA) supports an employee’s right to use an employer’s e-mail system for non-business purposes, including discussions about union organizing. Purple Communications, Inc. and Communications Workers, AFL-CIO, 361 N.L.R.B. No. 126 (December 11, 2014).

Section 7 of the National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities” with each other for collective bargaining or in efforts to improve working conditions and terms of employment. These concerted activities can be done in person, or by other methods of communication, including electronic media.

An employer’s discipline or termination of an employee, if found to violate Section 7, can lead to legal liability that may result in the imposition of financial damages, and lead to reinstatement of the employee. That fact has created interest, consternation, and varying levels of panic among employers trying to balance the rights of employees to protected concerted activity with a company’s right to expect compliance with its policies and with attempts to protect confidential information and electronic media.

While employer policies and handbooks continue to attempt limitations on the use of company resources and property – including e-mail – for non-work-related reasons and communications, employees and employee rights groups argue that such limitations could restrict Section 7 rights. The Purple Communications decision fits squarely within the position supported by employee groups.

The December 11 decision by the NLRB centers on a charge by the Communication Workers of America, AFL-CIO, that a company’s electronic communications policy, which prohibited the use of company equipment – including “email systems” – for activities “on behalf of organizations or persons with no professional or business affiliation with the Company,” was an unfair labor practice. The decision has raised concern because it overrules a 2007 decision (Register Guard, 351 NLRB 1110) by an earlier Board which held that employees had no statutory right to use employer e-mail for activities covered by Section 7.

The difference between the recent case and the 2007 matter, according to the current Board, is that the 2007 decision focused “too much on employers’ property rights and too little on the importance of email as a means of workplace communication.”

This recent decision specifically holds that the use of e-mail by employees for “protected communication on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

Stating that its decision is “carefully limited,” the Board outlines exceptions to that holding. First, the decision applies only to employers who currently grant access to the company’s e-mail system – it does not require employees to be allowed to access such systems. Second, it allows a total ban on non-work use of e-mail, if a company can demonstrate “special circumstances” that make such a ban necessary. As an alternative to a complete ban, the decision allows for “uniform and consistently applied controls” over e-mail, if such controls are “necessary to maintain production and discipline.”

However, the Board’s decision may cause more confusion than it resolves, and the subjective nature of the exceptions (“special circumstances” is undefined in the decision, as is the nature of acceptable “controls” to maintain production/discipline) may create unanticipated litigation for companies who attempt to take advantage of them.

The Board has remanded the matter back to the Administrative Law Judge (ALJ) who originally heard the case in 2013 (and whose decision that Purple’s policy did not violate Section 7 also was overturned by this Board’s holding) to allow him to reopen the record in light of these exceptions and to allow the parties to “present evidence relevant to the standard we adopt today.” The ALJ’s upcoming decision may provide instruction that can help to create more concrete parameters for the exceptions.

Employers that currently have a business-use-only policy for social media and e-mail systems should review that policy in light of this decision. Regardless of whether the Purple Communications decision holds up to subsequent appellate review, a wave of new unfair labor practice (ULP) charges challenging existing e-mail policies seems likely.

It seems clear also that employers providing employees with e-mail access at work but prohibiting employee e-mail use during a union representation campaign are likely to have the results of the election challenged by the union and overturned by the Board, consistent with this decision.


Ebola outbreak prompts HHS Bulletin on application of HIPAA during emergencies.


The Health Insurance Portability and Accountability Act (HIPAA) was enacted by Congress and signed by President Bill Clinton in 1996. According to the U.S. Department of Health and Human Services (HHS), the HIPAA Privacy Rule establishes nation-wide standards “to protect individuals’ medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically.” HIPAA also provides to patients the right to examine and obtain a copy of health records, and to request corrections.

The HIPAA Privacy Rule places restrictions on the use and disclosure of patients’ protected health information, but also ensures that appropriate uses and disclosures of the information may occur for critical purposes, including when necessary to treat a patient, to protect the nation’s public health, and for other critical purposes.

Prompted in part by the recent Ebola outbreak, the HHS’ Office for Civil Rights (OCR), issued a November 10, 2014 bulletin to ensure that HIPAA covered entities and their business associates are aware of the ways in which patient information may be shared under the HIPAA Privacy Rule in an emergency situation. The bulletin also was issued to “serve as a reminder that the protections of the Privacy Rule are not set aside during an emergency.”

The bulletin, which can be accessed through a link on the HHS’ Health Information Privacy page, addresses both “Sharing Patient Information” and “Safeguarding Patient Information,” and describes basic restrictions for sharing protected health information during treatment, public health activities, for notification to family and friends, and to media and business associates.

While the HHS Bulletin specifically mentions that the HIPAA Privacy Rule is not suspended during a public health or other emergency, the Bulletin goes on to say that the Secretary of HHS (Secretary) may waive certain provisions of the Privacy Rule under certain circumstances. Those circumstances include declaration by the President of an emergency or disaster, or by the Secretary of a public health emergency.

In those instances, the Secretary may waive sanctions and penalties against a covered hospital that does not comply with provisions of the Privacy Rule to obtain a patient’s agreement before speaking to family members about the patient’s care – however, that waiver would apply only to hospitals that have instituted a disaster protocol, and only would apply for 72 hours after that protocol begins.

The Bulletin states that a hospital may release limited “facility directory information to acknowledge an individual is a patient at the facility and to provide basic information about the patient’s condition in general terms (e.g., critical or stable, deceased, or treated and released) if the patient has not objected to or restricted the release of such information or, if the patient is incapacitated, if the disclosure is believed to be in the best interest of the patient and is consistent with any prior expressed preferences of the patient.”

The Privacy Rule applies to disclosures made by employees, volunteers, and other members of a “covered entity” or its “business associates.”

Covered entities comprise “health plans, health care clearinghouses, and those health care providers that conduct one or more covered health care transactions electronically, such as transmitting health care claims to a health plan.”

Business associates are defined in the Bulletin as “persons or entities (other than members of the workforce of a covered entity) that perform functions or activities on behalf of, or provide certain services to, a covered entity that involve creating, receiving, maintaining, or transmitting protected health information. Business associates also include subcontractors that create, receive, maintain, or transmit protected health information on behalf of another business associate.”

The Privacy Rule does not apply to disclosures made by entities or other persons not covered entities or business associates. Therefore, HIPAA prevents no manager, supervisor, or HR person from asking for a doctor’s note if the note is needed to implement or administer sick leave, workers’ compensation, or health insurance. However, a health care provider cannot give such information directly to an employer without an authorization from the employee.


Credible threats of insubordinate activity could override NLRA protections for employees’ Facebook postings.

No profanity please

A few months ago, the National Labor Relations Board (the Board) determined that an employee’s profanity-laced tirade did not lose the protection of the National Labor Relations Act (NLRA), because the tirade followed the employer’s statement that if the employee didn’t like his job, he could quit.

Recently, however, the Board found that a Facebook conversation containing numerous profane words was outside of the protection of the NLRA, even though the postings took place after a year-end staff meeting at which numerous concerns were expressed by employees about their working conditions. Richmond District Neighborhood Center and Ian Callaghan, Case 20-CA-091748, October 28, 2014.

Beacon Teen Center, operated by Richmond District Neighbor Center (RDNC) in San Francisco, provides afterschool activities to students. Ian Callaghan and Kenya Moore both were employed at Beacon. In May 2012, a year-end staff meeting was held in which employees were asked to write down the “pros and cons” of working at Beacon. Employees anonymously submitted 8 pros and 23 cons. After that meeting, some employees felt that managers had taken the comments personally, and were giving employees the “cold shoulder.”

Before each school year begins, RDNC sends offer letters to those employees whom it wants to return for another school year. Callaghan and Moore each received offer letters for the 2012-2013 school year at Beacon.

On the evening of August 2, 2012, Callaghan and Moore engaged in postings to each other on Facebook. That exchange included a number of statements related to their anticipated return to the Beacon, and referenced plans for disruptive and insubordinate behavior.

Callaghan stated: “. . . we’ll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls. . . . I don’t feel like being their bitch and making it all happy-friendly-middle school campy. Let’s do some cool shit, and let them figure out the money. . . . Let’s f*** it up. . . .”

Moore responded: “. . . sO we just gobe have fuN dOin activities and the best part is WE CAN LEAVE NOW hahaha I AIN’T GOBE NEVER BE THERE. . . .”

The day after the postings, a Beacon employee sent screenshots of the conversation to management. On August 13, on the basis of the postings, RDNC rescinded Callaghan and Moore’s rehire offers, stating that “These statements gave us great concern about you not following the directions of your managers in accordance with RDNC program goals . . . We have great concerns that your intentions and apparent refusal to work with management could endanger our youth participants.”

A charge was filed on behalf of the two employees, and an Administrative Law Judge presided at trial in July 2013. He determined that the Facebook conversation was not protected under the Act, and that the withdrawal of the hiring letters was not unlawful. On October 28, 2014, that decision was upheld by the Board.

Of note is the fact that the Board specifically mentioned that its decision was not based on the profanity used by the employees in their postings but instead, was based on the specificity of the actions threatened by the two employees, which included neglecting their duties (“I AIN’T GOBE NEVER BE THERE”), undermining leadership (“we’ll take advantage”), disregard of rules (“play music loud” and “teach kids to graffiti up the walls”), and jeopardizing the future of Beacon (“Let’s f*** it up”).

In summary, the Board found that the “pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render Callaghan and Moore unfit for further service.”

In response to the argument that the two employees had no history of insubordination and that, therefore, the postings could not reasonably have been understood at as serious threat of such conduct, the Board pointed to the magnitude and detail of the proposed behavior advocated in the posts. Such postings, it said, “reasonably gave [Beacon] concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take.”

The teaching point here is clear: not every profane or unpleasant posting is outside of the protection of the NLRA; but postings that reasonably evidence an actual risk of insubordinate, dangerous, or threatening behavior that would adversely affect a business may take the writer outside of that protection.


Employer must consider “job restructuring” if such restructuring would accommodate disabled employee without undue hardship.


Job restructuring is one of the accommodations that an employer must consider under the Americans with Disabilities Act (ADA) and its regulations. Recently, the 7th U.S. Circuit Court of Appeals held that if a minor adjustment to the work duties of a few other nursing home employees would have enabled the home’s hairdresser to perform the duty of pushing her customers’ wheelchairs to hairdressing appointments despite her disability, the nursing home’s refusal to consider making that adjustment was unlawful. Kaufmann v. Petersen Health Care VII, LLC, 7th Cir., 2014, No. 13-3661 (October 16, 2014). 

Debra Kaufmann began working as one of two hairdressers at Mason Point nursing home in 1981. On Mondays and Tuesdays, Kaufmann would wheel residents – who weighed between 75 to 400 pounds – one by one in their wheelchairs from their rooms to the nursing home’s beauty shop, do their hair, and wheel them back to their rooms, a journey that Kaufmann estimated took an average of two-and-one-half minutes. On her other work days, Kaufmann mainly did the hair of residents who either could get themselves to the beauty parlor, or who had to be visited in their rooms and, therefore, she rarely had to push a wheelchair on those days. Kaufmann also had some duties unrelated to hairdressing, such as helping out in the laundry room, and carrying breakfast trays to residents. 

In December 2010, Kaufmann underwent surgery that included placing a mesh lining to hold her bladder in place. She was released by her doctor to return to work eight weeks after the operation, but could not push over 20 pounds at the time. That limit ultimately was raised to 50 pounds, five months later. However, Kaufmann’s doctor instructed her not to push wheelchairs, stating that over time, that pushing would cause her mesh lining to tear loose and would then require surgical repair. 

On the basis of that warning, Kaufmann informed her employer that she could no longer push wheelchairs. In response, the nursing home’s administrator allegedly responded that the facility did not allow employees to work with permanent restrictions. Kaufmann’s suggestion that others could push the wheelchairs for her, or that she could work full time in the laundry room both were rejected without further discussion. 

Kaufmann quit her position at the nursing home and ultimately sued Manor Point under the ADA. Until her position was filled, the other hairdresser received assistance from other staff in the nursing home in wheeling residents to and from the beauty parlor. There was no evidence or testimony from the employer that this diversion of staff resources created an undue hardship or impaired care to other residents. 

The lower court granted summary judgment in favor of the employer, ruling that wheeling residents to and from beauty parlor appointments was an essential function of the hairdresser position. That ruling was based in part of the nursing home administrator’s statement that wheeling residents took 60 to 65 percent of Kaufmann’s work day, in spite of Kaufmann’s own estimate that it took 6 to 12 percent of her time, and only on Mondays and Tuesdays. 

On appeal, the 7th Circuit did a detailed analysis and comparison of the amounts of time asserted to have been taken in the transporting of the residents to the beauty parlor. It also compared that time to the time-per-resident generally spent by staff. Importantly, it pointed out that the wheeling duties had been reassigned without issue during the period between Kaufmann’s resignation and her replacement’s hire. Based on all of that analysis, the Court found that whether the wheelchair-pushing function was an essential function was a factual issue that had to be determined by a jury.

In addition to pointing out that an employer must engage in an “interactive process” to determine and appropriate accommodation under the circumstances presented, the 7th Circuit included several holdings to which employers should pay close attention:  

(1)   the fact that a restriction is permanent may not automatically excuse an employer from making an attempt to accommodate it;  

(2)   without proving that reassignment of the wheelchair duties created an undue hardship, the employer “might have a very hard time” setting forth a successful defense in this case; and 

(3)   “job restructuring” is one of the accommodations that an employer must consider under the ADA.

Misrepresentation on employment application may override state criminal background check law.

help wanted

Most employers understand the importance of compliance with the federal Fair Credit Reporting Act (FCRA) as it applies to background checks and applicant records. However, employers also must recognize the interplay of state law restrictions on the use of background checks in the application and employment process.

Recently, a federal district court in Pennsylvania granted summary judgment in favor of an employer who withdrew an offer of employment after that employer found a discrepancy between background check records and information reported directly by the applicant to the company. McCorkle v. Schenker Logistics, Inc., MDPA, 1:13-cv-03077, October 8, 2014. 

Dustin McCorkle made application to a transportation logistics company in Central Pennsylvania. As part of the application process, McCorkle was asked to provide a 10-year criminal background history, and was informed that any information provided would be checked against a background check done by a third-party provider. The company’s policy states that “True misrepresentations of facts [on the application], confirmed through the background check, may disqualify an applicant from future consideration of employment.”

McCorkle provided information regarding a stalking/harassment conviction related to a custody issue, but mentioned no other convictions. He then signed the application, which included this language:

I understand and agree that any false, misleading, or incomplete information given in my application, interview(s), or other pre-employment questionnaires and procedure, regardless of when discovered by the Company will be sufficient basis for my disqualification for employment or, if already employed by the Company, the termination of my employment with the Company.

The application also required McCorkle to read and sign the following statement:

I agree that the Company shall not be liable in any respect if I am not hired or if my employment is terminated as a result of providing such false, misleading or incomplete information.

Following McCorkle’s application, the company obtained a background check that included various other misdemeanor and summary convictions, none of which were reported to them by McCorkle on his application. Based on that fact, the company withdrew the offer of employment. McCorkle filed a lawsuit against the company, alleging violation of Pennsylvania’s Criminal History Record Information Act (CHRIA). 

The CHRIA sets out the parameters for an employer’s use of criminal background check information, and specifically states that “[f]elony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.” CHRIA prohibits employers from making hiring decisions based on criminal convictions that are unrelated to an applicant’s suitability for a particular job.

While McCorkle alleged that the company violated the CHRIA by withdrawing its offer of employment, the district court found that it was McCorkle’s misrepresentation and incomplete reporting of his criminal background that caused that withdrawal and that the “disqualification was not based on Plaintiff’s criminal history record information.” Therefore, no violation of CHRIA existed.

This holding was supported by the wording of the company’s policy and application form, both of which spelled out in unambiguous language the fact that the company would not hire or continue to employ an individual who misrepresented information. Without that language, which was quoted heavily in the court’s opinion, it is unclear as to whether the result would have been the same.


Is your workforce knowledgeable about Ebola . . . and should it be?

Concerns related to the Ebola outbreak are increasing on the part of both employers and employees in the U.S.. While the outbreak is most active in the West African nations of Guinea, Liberia, Nigeria, and Sierra Leone, there has been at least one confirmed case in the United States. The key to preventing the spread of Ebola – as with many communicable diseases – is identifying and isolating potential cases as quickly as possible.

Health care employers have begun to implement preparedness protocols; proactive employers in other areas should follow suit, to the extent that such protocols could assist in limiting the exposure of employees to the disease by adding information and other tool to assist in understanding Ebola prevention, detection, and treatment. 

So far, the following steps have been suggested to healthcare employers: 

  • The Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services (HHS) Office of the Assistant Secretary for Preparedness and Response have issued Ebola screening criteria and general guidance for the health care community, to ensure that all health care workers (including hospital workers, physician groups and EMTs) are able to detect and respond to the virus, as well as protect themselves and others from it.
  • The CDC has posted maps to show the most heavily affected areas in the West African countries in which the virus has been detected; this information should be factored into screening procedures being conducted by hospital emergency rooms, outpatient clinics, and other first responders.
  • The CDC has opened an Ebola website  on which it continually posts updated information.
  • CDC officials are available to assist 24/7 by calling the CDC Emergency Operations Center at 770-488-7100; they can be reached by email at
  • On October 1, the American Hospital Association (AHA) updated its own Ebola preparedness webpage with resources that hospitals and health systems, as well as emergency response personnel, can use to prepare for Ebola and will continue to update as resources and information become available, including screening criteria and a preparedness checklist.
  • Specialty health care associations, like the American Academy of Pediatrics (AAP), have issued their own information on the Ebola outbreak.

While these notices and bulletins have been directed specifically to health care entities, non-health care employers should be reviewing the information as it is issued, to assure company compliance with any aspects of the directives that may affect their own workforces. Travel information and advisories should be consulted when planning to ask employees to travel near, to, or through affected areas; screening criteria should be provided to employees who engage in travel to allow them to be vigilant for of symptoms and health-related issues; and general information can be posted to educate employees on the ongoing developments in and containments of the disease.  

Employers also must be aware of the implications of both the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) when considering whether or not to share health-related information with and about employees. Relaying the general advisories and informative bulletins published by the above-mentioned agencies is not likely to trigger any statutory violation, but sharing information related to a specific employee’s health or medical condition may lead to unintended liability. Any bulletins, advisories, or notices to general employee populations should be discussed and cleared with human resources personnel and legal counsel before posting or distributing to employee groups.

Policy regarding return-to-work medical release trumps employee’s ADA and FMLA claims.

back pain

One of the questions most frequently asked by employers is whether an employee’s failure to comply with company policies regarding a return-to-work release can support termination of the individual’s employment. While courts differ on that issue depending upon judicial circuit and the specific facts of the case, the 8th U.S. Circuit Court of Appeals recently answered that question with a definitive “Yes.” Withers v. Johnson, 8th Cir., No. 13-2646, August 15, 2014.

Calvin Withers was employed as an assistant probation officer for the County Circuit Court of Pulaski, Arkansas. Beginning in January 2011, he came under the supervision of Circuit Judge Leon Johnson. Wither’ duties included monitoring probationers, documenting their compliance with court-imposed instructions, and providing reports to Johnson on occasion.

On March 17, 2011, Withers suffered a work-related back injury. On that same day, Withers sought medical treatment and was cleared to return to work immediately with a 10 pound lifting restriction. Withers promptly provided that release directly to Johnson under a written policy that required that medical releases be provided to supervisors “immediately” upon receipt of such release. Johnson expressed no objection to the accommodation. During the following weeks, Withers received additional treatment and was further restricted. Withers again provided his medical releases directly and promptly to Johnson, who never objected to the restrictions.

On March 29, Withers was placed on “non-duty” status by his doctor, and was granted FMLA leave as of April 1, 2011. On May 10, Withers was cleared by his doctor to return to work. Withers called Johnson’s office that day and left a voice mail stating: “[T]his is Calvin Withers, give me a call back.” After no return call from Johnson, Withers left another message on May 11, asking Johnson to “holler back” at him, but again without further detail. On May 12, Withers left a phone message for Linda Liddell, a member of the County’s human resources department, asking for a return call.

On May 13, a Friday, Withers called a law clerk to say that he was trying to reach Johnson, and telling her “the situation . . . [and] what the doctor said.” The clerk informed him that Johnson was at a judicial conference and that she would send a text message to him. She did, in fact, text Johnson, letting him know that Withers was trying to reach him, but she provided no further detail. On that same day, Withers received a return call from Liddell, who said that if Withers faxed the return-to-work release to her, she would forward it to Johnson’s chambers. Withers faxed the release to Liddell on Monday, May 16.

However, in a letter dated May 16, Johnson terminated Withers’ employment, based on a personnel policy that requires every employee to “immediately” provide a return-to-work release to his or her supervisor upon medical clearance.  An employee who fails to do so is considered to have resigned.

Withers filed suit against Johnson and the County. Ultimately, Withers voluntarily dismissed certain of his claims, and the others were dismissed by the court on summary judgment. Withers appealed only his claims against Johnson under the ADA/Rehabilitation Act and the FMLA. The Eighth Circuit upheld the dismissal of those claims.

Withers’ claimed that Johnson fired him because of his disability, pointing to Johnson’ failure to return his calls and his alleged failure to accommodate Withers’ medical impairment. In response, the Eighth Circuit held that Withers’ two “nondescript telephone messages” did not support an inference of discrimination based on disability, because the calls made no mention of any medical condition or need for accommodation. Further, the Court pointed out that Johnson had accommodated all of Withers’ prior work restrictions without objections, and that Withers offered no evidence of any retaliatory motive on Johnson’s part for the termination. The Court used the same rationale in addressing Withers’ FMLA claim, specifically stating that there was no evidence that Johnson interfered with Withers’ FMLA leave, or that Johnson took any action in violation of that Act.

In this case, Withers’ employment was terminated because he violated a policy that required him to provide a medical release to his supervisor “immediately” upon his release to return to his job duties. Although Withers was okayed by his doctor to return to work on May 10, it was undisputed that he did not fax the release until May 16 – and even then, he faxed it to the human resources representative, who ten relayed it to the supervisor – making this a clear case of policy violation.

Employers cannot rely on this decision to support a blanket denial of an employee’s return from a medical-related leave, because not every return-to-work situation is as uncomplicated as this one: instead of an immediate submission of his release, Withers waited 6 days; all of his prior requests for accommodation had been implemented; and his FMLA leave request had been granted without conditions. Without all of those elements, issues of fact may be present that would convince a court to allow the case to go forward.

Restriction of job responsibilities – even without diminished salary or benefits – may constitute an “adverse action” under Title VII.


Title VII makes it unlawful for an employer to fail to hire or to discharge an individual or otherwise to discriminate against such individual “with respect to his compensation, terms, conditions, or privileges of employment” because of a protected characteristic, including race.

To establish a claim of discrimination under Title VII, an individual must first show that he or she was subject to an “adverse employment action” – which has been judicially defined as an action that affects the terms and conditions of employment, and which can include firing, failure to hire, demotion, an unequal compensation. 

The 5th U.S. Circuit Court of Appeals historically has been one of the most restrictive federal appellate courts in its definition of an “adverse employment action.” However, that court recently held that a city police department’s restriction of a detective’s responsibilities after his return from a disciplinary suspension was sufficient to fall within the definition of an “adverse employment action,” and to overcome the city’s motion to dismiss his lawsuit. Thompson v. City of Waco, 5th Circ., No. 13-50718, September 3, 2014. 

Allen Thompson is an African American detective in the Waco, Texas Police Department. Thompson and two Caucasian detectives were suspended after allegations that the three had falsified time sheets. After reinstating all three detectives, the City imposed restrictions on Thompson that it did not impose on the two non-minority detectives. The restrictions precluded Thompson from: searching for evidence without supervision or logging that evidence in after discovery; acting as the lead investigator on a matter, affiant in a criminal case, or evidence officer at a crime scene; and working in an undercover capacity.  

According to Thompson, his new responsibilities were “significantly different,” less prestigious, less interesting, and less likely to lead to promotion than his prior responsibilities. 

Thompson sued the City, and the City responded by moving to dismiss the suit, arguing that Thompson had failed to set forth the required “adverse employment action” necessary to support a Title VII discrimination claim. 

That decision was reversed by the Fifth Circuit, which found that while the mere “loss of some job responsibilities” does not automatically constitute an adverse employment action, that fact does not mean that a change or loss of some responsibilities can never establish an actionable discrimination claim.  

Thompson alleges that the Police Department rewrote and restricted his job description to the extent that he now functions as an assistant to the other detectives, rather than a true detective in his own right. Thompson claims to have lost essential job functions, and states he no longer uses his education and skills to act as a detective, and that such circumstances are materially adverse. Therefore, according to the court, the circumstances are materially adverse, and Thompson has stated a “plausible claim that he was subject to the equivalent of a demotion.” 

The court is quick to point out that it has “no view on Thompson’s likelihood of success” and that such determination is fact-intensive and is “better suited for summary judgment or trial stage.” However, Thompson’s claims, as stated, overcome the initial hurdle required by Title VII to set forth an “adverse employment action.”  

The lesson for employers is clear: if the terms and conditions of employment are changed to an extent that changes the basic nature of the job itself – even without a diminution in the salary or benefits associated with the job – such action may be sufficiently “adverse” to support a discrimination claim under Title VII.

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.