Congrats to Philip Miscimarra on his appointment as NLRB Chair
I’m on record
as calling Philip Miscimarra
“mad as hell,” referring to his scathing dissents in recent NLRB protected concerted activity cases. I also have it on good authority that while he and I agree that the NLRB has gone off the proverbial reservation in these cases, he is not, in fact, mad as hell.
Be that as it may, he has every reason today to be as happy as he can be.
Late last week, President Trump removed the “acting” from Mr. Miscimarra’s title as NLRB Chair, officially naming him to fill that position on a permanent basis.
Congrats, Mr. Miscimarra. I cannot wait for your Board to undo the damage done to employers by the Obama-era NLRB. For example:
Thank you, sir, for putting up the good fight in dissent these past four years. Now, let’s see what you can do as the Head NLRB Member in Charge (once President Trump fills the Board’s two vacancies).
2nd Circuit holds that it’s perfectly okay for an employee to curse out his boss on Facebook (NSFW)
It’s been two years
since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message. I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) [pdf]
dashed that hope.
A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration.
Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!
Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”
Because the employee couched his MF’ing rant with a decidedly pro-union message, the appellate court held that section 7 protected him and his post.
First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the “subject matter” of the message included workplace concerns—management’s allegedly disrespectful treatment of employees, and the upcoming union election. …
Second, Pier Sixty consistently tolerated profanity among its workers. The ALJ found that Pier Sixty had not previously disciplined employees for widespread profanity in the workplace…. Under the circumstances presented here, it is striking that Perez—who had been a server at Pier Sixty for thirteen years—was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity. …
Third, the “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event. Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible.
Have no fear, employers, for despite the NLRB’s victory, the 2nd Circuit did find this to be a close case:
We note that this case seems to us to sit at the outer-bounds of protected, union-related comments, and any test for evaluating “opprobrious conduct” must be sufficiently sensitive to employers’ legitimate disciplinary interests.
What can employers learn from this decidedly pro-employee decision?
- Timing is everything. Central to most of the court’s logic is the fact that (a) this employee was pro-union; (b) expressed his pro-union sentiment directly in his rant; and (c) such rant occurred a mere two days prior to the union election.
- It’s perfectly reasonable to take a stand against profanity in the workplace, but if you are going to do so, be consistent, or least consistent enough such that your first attempt at firing an employee for said profanity is not a pro-union employee two days prior to a union election.
- Social media is different, because of its openness and visibility. However, if you are going to rely on that openness to discipline or fire an employee who is using social media to engage in protected conduct because of abusive behavior such as profanity, you best come armed with actual evidence of customer or business disruption, or reputational harm. The mere public nature of the outburst alone may not be enough to justify your action.
National origin discrimination laws don’t matter in Trump’s America
Last week, President Trump signed his “Buy American, Hire American
“ Executive Order. The EO encourages American businesses to buy American-made products and hire American workers.
Come again? Does that say hire American workers? Doesn’t Title VII prohibit national origin discrimination?
Yes, Title VII still prohibits national origin discrimination. And, no, this Executive Order does nothing to change Title VII’s impact. But the manner in which the White House is promoting this EO is … curiously disturbing.
But that’s not how the White House is promoting this Order. It’s being promoted as #HireAmerican, which sends a certain signal to certain xenophobically and/or racistly inclined Americans, who might use this Executive Order to discriminate on the basis of national origin, or race, or religion. “Trump says Hire American, so I’m not hiring that one with the turban, or hijab, or funny accent.” And that’s the exact type of discriminatory misconduct that Title VII is supposed to protect against.
If President Trump wants stricter borders, and to restrict work visas available to foreign nationals, so be it. It’s his prerogative as the President of the United States. If you don’t like it, your remedy rests at the ballot box. However, the White House needs to be careful with its messaging. #HireAmerican sends the wrong message, and will do a whole lot more harm than good, by offering the ignorant and the uninformed a license to hate and discriminate.
Working Families Flexibility Act seeks to legalize comp time in lieu of overtime
If you are a private employer, it is 100 percent illegal for you to provide employees comp time in lieu of overtime for hours worked by non-exempt employees over 40 in a work week. If a non-exempt employee works overtime, you must pay them overtime, and you violate the FLSA if you provide comp time in its place.
The Working Families Flexibility Act
, introduced earlier this year in Congress, seeks to change this rule.
If enacted, the bill would enable employees to earn compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation would otherwise be required. It also:
- Caps the amount of comp time an employee may accrue at any given time at 160 hours.
- Requires that employers annually pay out any unused comp time.
- With 30 days’ notice, permits employers to pay out any unused comp time in excess of 80 hours.
- Provided for payment of unused comp time upon termination of employment for any reason.
- Prohibits retaliation.
- Gives employers the flexibility to schedule requested time off within a reasonable amount of time after it is requests, such that operations are not disrupted.
Critics argue that this bill is a “scam”
Workers may request the time for any purpose they like, including care for a sick child or even baseball opening day. There’s just one hitch: the boss may decide an absence that particular day would “unduly disrupt” business operations and specify an alternative date when the child happens to be well and in school and the World Series has come and gone. Flexibility often is a one-way street. … There are a few other drawbacks. When overtime assignments come around, workers get to choose which option they prefer, pay or comp time. But the boss also gets to make the assignments. Those who need overtime to pay the bills may well be passed over. For them, this bill represents a pay cut.
This argument missed one key piece of the legislation—the decision to choose comp time in lieu of overtime rests solely with an employee.
An employer may provide compensatory time to employees … only if such time is provided in accordance with a [written] agreement arrived at between the employer and employee before the performance of the work … (i) in which the employer has offered and the employee has chosen to receive compensatory time in lieu of monetary overtime compensation; and (ii) entered into knowingly and voluntarily by such employees and not as a condition of employment.
In other words, if an employee values overtime over comp time, and would rather have extra money instead of extra time off, then the employee chooses overtime. If an employee, like many these days
, prefers flexibility and work/life balance, then the employee chooses comp time. Where is the harm? Where is the lack of flexibility? Where is the pay cut?
This bill (which expired five years after it is passed, and will be a test balloon on this issue) strikes an important balance for employees and employers, on an issue that has become more and more important to the American worker—flexibility and time. No, it does not solve every problem with a lack of work/life balance (see, paid medical leave
), but it is a quality step in the right direction that we should all embrace.