The National Labor Relations Board (NLRB) didn’t have a very good May. First, the D.C. Circuit Court of Appeals ruled that employers are not required to display the NLRB’s poster highlighting employee rights under the National Labor Relations Act (NLRA). The court determined that the requirement would equal “compelled speech” and would violate the NLRA itself. Between the hoist-on-their-own-petard nature of the ruling and how high the court is, we’re likely to have heard the last of the NLRB poster.
But the real hammer drop came in mid-May, when the Third District Court ruled that the appointments to the Board that President Obama made while Congress was on a recess (rather than between sessions) were unconstitutional. With those appointments rendered invalid, the NLRB no longer has enough members to operate officially, so it’s basically dead in the water right now. Like we said, not a great month for them.
By comparison, the Equal Employment Opportunity Commission (EEOC) had a much better month. For starters, it’s still operational. Plus, it just settled its first case involving the Genetic Information Nondiscrimination Act (GINA). A fabric distributor offered a temporary employee a regular-hire position, but insisted on including family medical history in its post-offer medical examination. (They thought the employee had carpal tunnel syndrome; she and her doctor assert that she didn’t.) After violating GINA thusly, they decided to make it a double play and deny the temporary employee the regular position because they believed she had carpal tunnel syndrome, violating the Americans with Disabilities Act (ADA) as well. The company was fined $50,000 in damages, which is a fairly light sentence for violating two federal labor laws.
The EEOC had something of a muted success, after a jury awarded 32 disabled employees of an Iowa turkey plant a record $240 million for the discrimination they suffered at their jobs. This discrimination took the form of verbal and physical abuse, substandard living conditions and denial of medical care, and the description of the case is pretty hard to read without becoming angry. However, the award was slashed significantly, from $240 million to $1.6 million due to a federal cap on damages for a company with 100 employees or fewer. That said, the $50,000 each employee will receive will be augmented by $2.9 million each from an earlier wage discrimination judgment levied against the same turkey plant for drastically underpaying these disabled workers. As Forrest Gump said, sometimes there just aren’t enough rocks.
Elsewhere in DC, the Occupational Safety and Health Administration (OSHA) ruled that non-employees can be designated as employee representatives to go on OSHA “walkaround” inspections. These non-employee representatives could include union reps at non-union workplaces, so be aware of that possibility.
Now, on to our regular coverage of all things Facebook as it pertains to employment law. First, when a case in Pennsylvania involved Facebook photos of a supposedly injured worker frolicking in the snow, a state judge ordered an “expert review” of the worker’s Facebook account, but only for the photos taken on the dates in question. We’re not sure where such an expert would be found, but we hope they looked further than, say, a lawyer’s ninth-grade kid who’s “on there every day.”
You might remember a case from last year about a teacher who posted gleeful fantasies on Facebook about her 5th-grade students drowning while on a field trip… the day after a student from another school drowned while on a field trip. She was fired, then the New York Supreme Court overturned the termination. This month, a state appellate court upheld the reversal of the termination, stating that the teacher was merely “vent[ing] her frustrations,” and only to friends and friends of friends on the network. There’s a “what do you have to do to get fired from a teaching position in New York?!” joke in there somewhere.
And finally, we look at a disgruntled employee who posted this about her employer within a Facebook group discussion with other employees: “They are full of [bleep] … They seem to be staying away from me, you know I don’t bite my [tongue] anymore, [BLEEP] … FIRE ME. … Make my day…” A co-worker printed out her comments and showed them to management, who presumably made the employee’s day by firing her. She filed a claim with the NLRB, who surprised many by ruling that since this was just one employee griping rather than a conversation about workplace conditions, the posting wasn’t protected concerted activity, and the employer was free to fire away.
So with that salvo, we bid you a happy June, already in progress.