"Do as I say, not as I do. ". That may as well have been the management philosophy at United Food & Commercial Workers Local 7. Earlier this week, an NLRB administrative law judge found that UFCW Local 7 unlawfully suspended and fired one of its own ...
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A labor union retaliated against its own union employee. The irony writes itself.

"Do as I say, not as I do."

That may as well have been the management philosophy at United Food & Commercial Workers Local 7.

Earlier this week, an NLRB administrative law judge found that UFCW Local 7 unlawfully suspended and fired one of its own employees because of his union activity and because he testified against the union in an NLRB proceeding.

Yes, you read that correctly.

A labor union retaliated against an employee for engaging in protected union activity.

You can't make this stuff up.

Randy Blea worked for UFCW Local 7 for more than a decade as a union representative, assisting employees at Denver-area grocery stores. But Blea was also an employee of the union. And he and the union's other representatives were themselves represented by another union, the Federation of Agents & International Representatives Union, or FAIR.

That arrangement created a deliciously awkward situation: UFCW Local 7 was both a labor union and an employer.

And according to Administrative Law Judge Charles Muhl, it behaved exactly like the kind of employer unions love to condemn.

Blea had served as a FAIR steward for approximately four years. On August 31, 2023, he testified in an earlier NLRB trial supporting allegations that UFCW Local 7 had committed unfair labor practices against its own union-representative employees. Seven days later, Local 7 suspended him. Fifteen days after that, it fired him.

Local 7 claimed the termination resulted from poor performance, failure to follow directives, and dishonesty.

The judge wasn't buying it.

Among other problems, the timing was terrible. The union argued that it had begun investigating Blea before his testimony, but the judge found that its investigation into his overall performance actually began on September 6 — less than a week after he took the witness stand against his employer.
Then there was progressive discipline.

Local 7 insisted that it had treated Blea consistently with other employees. Yet the judge found otherwise. Blea had not received any discipline for more than a year before his termination. Other employees who were ultimately discharged had accumulated substantially more serious disciplinary histories, including multiple suspensions, final warnings, and last-chance agreements.

In other words, the union apparently believed in progressive discipline when it benefited other employees. Just not this employee.

The hypocrisy gets richer.

In an earlier case, another NLRB judge had found that Local 7 told its employees that grievance and arbitration procedures under their expired collective bargaining agreement no longer existed. It also told employees who complained about working conditions that they could work elsewhere or resign, disparaged FAIR, and failed to bargain in good faith with the union representing its employees.

This should sound familiar. It's the exact sort of conduct unions routinely accuse employers of committing.

Then Local 7 somehow managed to make things worse. 

After his termination, Blea went to work for King Soopers, where — irony upon irony — Local 7 represented him.

Five days before the end of Blea's probationary period, one of Local 7's representatives confronted him about flyers supposedly critical of the union president. After the confrontation, the union representative falsely reported that Blea had threatened him with physical violence. Local 7 then passed that accusation along to King Soopers and asked whether Blea had been suspended pending investigation.

King Soopers investigated. It determined there wasn't enough evidence to substantiate the alleged threat.

The ALJ concluded that Local 7's conduct violated the National Labor Relations Act because it attempted to cause King Soopers to take adverse action against Blea based on his perceived dissident union activity.

So Local 7 wasn't merely accused of retaliating against its own employee for protected union activity. It then became his bargaining representative and tried to get his new employer to discipline or fire him for dissident union activity.

Chef's kiss.

The judge found that Local 7 violated Sections 8(a)(1), 8(a)(3), and 8(a)(4) by suspending and firing Blea, and Sections 8(b)(1)(A) and 8(b)(2) by trying to get King Soopers to discipline or discharge him. The recommended remedy includes reinstatement, back pay, removal of references to the unlawful discipline from Blea's personnel records, and a notice promising employees that the union won't do it again.

And yes, there is something extraordinarily satisfying about a union being ordered to post this:

"WE WILL NOT suspend or discharge employees for engaging in union activity or for testifying in a National Labor Relations Board trial."

And:

"WE WILL NOT attempt to cause an employer to discipline or discharge an employee due to the employee's dissident union activities."

A couple of important caveats: this is an ALJ decision, not yet a final Board decision, and the recommended order will be subject to the NLRB's normal review process if exceptions are filed.

Still, the case illustrates something I've said for years:

When I say I don't like labor unions, it's not because I'm a management-side employment lawyer. And it's not because I'm anti-employee. Neither is true.

It's because we too often romanticize labor unions as if they are somehow fundamentally different from the employers they organize against.

They're not.

A union is a business.

It collects revenue. It pays employees. It has executives. It negotiates contracts. It manages labor costs. It protects its institutional reputation. It worries about dissent. It has political interests. It makes strategic decisions designed to preserve its power and advance its organizational objectives.

None of that is inherently wrong. Businesses do exactly the same things. But that's precisely the point.

We shouldn't expect a union to subordinate its institutional interests to those of its members any more than we should expect a corporation to subordinate its institutional interests to those of every individual employee.

Sometimes those interests align. Sometimes they don't.

And when they don't, unions can behave every bit as selfishly, defensively, vindictively, and illegally as the employers they spend their existence criticizing.

UFCW Local 7 apparently wanted employers to respect employees' rights to organize, complain about working conditions, file grievances, testify before the NLRB, and engage in union dissent.

It just wasn't nearly as enthusiastic about those rights when its own employees exercised them against the union.

Do as I say. Not as I do.

1 racial slur + 2 disciplinary actions = 0 Title-VII liability.

The EEOC swung for the fences in a hostile work environment case against Sun Chemical Corp. 

It argued that the company should be liable not because it failed to respond after an employee repeatedly called a Black coworker the N-word, but because it failed to prevent the harassment from happening in the first place.

This week, the 8th Circuit wasn't buying it.

Bryan Banks and Ricardo Nevarez had a deteriorating working relationship. Their personal animosity culminated in a heated confrontation in which the two employees exchanged profanities, Nevarez punched Banks's locker hard enough to dent it, and then screamed the N-word at Banks.

Sun Chemical acted quickly. It suspended Nevarez for five days without pay and warned that future misconduct could result in termination. Banks also received a written warning for his own profanity during the confrontation.

To be clear, a single use of the N-word in the workplace and directed a Black co-worker is grossly inappropriate, creates a hostile work environment, and is absolutely worthy of termination every single time.

Banks filed an EEOC charge, and the agency ultimately sued on his behalf, arguing that Sun Chemical's five-day suspension of Nevarez was insufficient and that it had failed to protect Banks from racial harassment. A jury rejected the claim. The EEOC appealed.

On appeal, the EEOC didn't spend much time arguing that Sun Chemical responded inadequately after the incident.

Instead, it argued that the jury instructions overlooked a different theory recognized by the Supreme Court in Vance v. Ball State Univ.: an employer can sometimes be liable for negligently failing to prevent harassment before it occurs.

In other words, the EEOC claimed that Sun Chemical should have done more after learning about an earlier incident in which Nevarez allegedly directed the same racial slur at another Black employee.

The 8th Circuit assumed for the sake of argument that this theory could apply. It still affirmed. The court identified two fatal problems.

First, Sun Chemical lacked notice of ongoing racial harassment. The earlier incident was just that: an earlier incident. There was no evidence that management knew Nevarez had become a serial harasser or that racial harassment was continuing in the workplace. A single prior episode, standing alone, did not put the company on notice that future harassment was likely.

Second, the company actually responded to that earlier incident. After learning about it, Sun Chemical issued written discipline instructing Nevarez to watch what he said and warning him about future consequences. Could the company have fired him? Sure. Did Title VII require it? No.

As the 8th Circuit emphasized, employers are not required to terminate an employee after a first offense simply to establish an adequate remedial response. Progressive discipline remains a perfectly acceptable approach, particularly where the employee has decades of service and no prior history of harassment.

The EEOC also pointed to testimony that Nevarez occasionally used the N-word in workplace conversations. The problem? Nobody reported those incidents. Without actual or constructive notice, the employer couldn't be held responsible for failing to stop conduct it didn't know about.
Practical lessons for employers

This decision reinforces several important principles.

First, one incident matters. Employers should never dismiss a racial slur as "just words." Investigate it promptly and impose meaningful discipline.

Second, Title VII does not impose strict liability. Employers are judged on what they knew or reasonably should have known, and whether their response was reasonably calculated to stop the misconduct.

Third, documentation matters. Sun Chemical's written discipline after the earlier incident proved critical. It demonstrated that the company took corrective action rather than ignoring the problem.

Finally, don't read this opinion as permission to go easy on racist conduct. Different facts produce different outcomes. Had Sun Chemical ignored repeated complaints, tolerated continuing harassment, or failed to escalate discipline after multiple incidents, the result almost certainly would have been different.

The court didn't say that one use of the N-word is insignificant. It said that Title VII does not make employers insurers against every act of coworker misconduct. Liability depends on notice and an unreasonable response. Here, because the EEOC couldn't prove the latter, the jury's verdict stood.
 

Hidden cameras, horrific conduct, and a critical Legal Distinction: Employers aren't automatically liable for every workplace bad act

The allegations against a former engineering executive at The Pokémon Company International are horrifying.

According to a newly filed class-action lawsuit, the executive allegedly hid cameras in employee restrooms at the company's Bellevue headquarters for years, secretly recording women, children, and others using the facilities. Criminal charges already pending against him allege an even broader pattern of voyeurism, including recordings made at a Starbucks, a Safeway, and his own home, along with charges involving child sexual abuse material.

If the allegations are true, the conduct is monstrous.

But here's the legal point that's easy to miss amid the outrage: an employer is not automatically responsible simply because something terrible happens at work. That's not how negligence works.

The key question isn't what happened. It's what the employer knew—or should have known.

The lawsuit doesn't merely allege that the misconduct occurred on Pokémon's premises. If that were enough, every employer would become the insurer of every criminal act committed by an employee.

Instead, the plaintiffs allege negligence. Specifically, they claim the company failed to train the employee properly, failed to supervise him, failed to control his conduct, and failed to respond to warning signs.

Those allegations matter because they're what could create liability.

Employers generally aren't liable for an employee's intentional criminal acts unless there was something that should have put the employer on notice. In legal terms, the issue is foreseeability.

Did management know about prior complaints?
Were there reports of suspicious behavior?
Did someone raise concerns that were ignored?
Were there red flags that would have prompted a reasonable employer to investigate?

If the answer to those questions is no, the employer's legal exposure becomes much more difficult to establish.

Bad facts don't automatically equal employer liability. Whenever a shocking workplace story makes headlines, there's a tendency to assume the employer must have done something wrong simply because the conduct occurred at work. That's an understandable emotional reaction. It's not necessarily the correct legal analysis.

Employers have a duty to provide a reasonably safe workplace. They do not have a duty to predict every secret criminal act committed by an employee who has given them no reason to suspect misconduct.

The law doesn't require omniscience. It requires reasonable care.

Right now, the public knows very little about what The Pokémon Company knew before law enforcement became involved.

The civil complaint suggests there were "indicators of danger." Whether those alleged indicators actually existed—and whether they were sufficient to put the company on notice—will almost certainly become one of the central issues in the litigation.

If evidence shows the company ignored complaints or failed to investigate obvious warning signs, that's one case.

If the evidence instead shows an employee who carefully concealed his crimes and gave the company no reasonable basis to suspect them, that's a very different case.

The facts—not the outrage—will determine whether the employer bears legal responsibility. That's an important distinction to remember.

Sometimes an employer truly deserves to be held accountable because it ignored warnings or failed to act. Sometimes, however, an employer is simply another victim of an employee's criminal conduct.

This case may ultimately reveal which one applies here. But simply because an awful crime allegedly occurred inside the workplace doesn't answer that question.

Negligence requires more than tragedy. It requires fault. And when an employer did nothing wrong, it shouldn't be defending a lawsuit simply because something horrific happened at work.
      

Temporary accommodations don't rewrite the job description

One of the more persistent myths in ADA litigation that if an employer temporarily accommodates an employee in a certain way, it has forever admitted that the accommodation is reasonable.

The 8th Circuit just reminded everyone that's not how the ADA works.

In Kendall v. Zoltek Corp., an employee at a carbon-fiber manufacturing facility injured her back and developed sciatica. Initially, her doctor cleared her to return to work without restrictions. Later, however, she requested an accommodation allowing her to sit periodically during her shifts. The company granted that request for several months while it evaluated her condition.

Eventually, though, the medical restrictions became permanent—and much more limiting. By the time her employment ended, she couldn't stand for more than 20 to 30 minutes, couldn't bend, stoop, kneel, crawl under machinery, or lift more than 10 pounds. Her employer's production operator position required employees to stand throughout 12-hour shifts while performing physically demanding work. After she exhausted her leave, the company terminated her employment.

She sued under the ADA, arguing that because Zoltek had successfully allowed her to sit for several months, standing couldn't really be an essential function of the job.

The 8th Circuit wasn't persuaded.

Instead, it reaffirmed several important ADA principles that employers should keep in mind.

First, written job descriptions matter.

The court gave significant weight to Zoltek's written job description, which required employees to stand for up to 12 hours while repeatedly lifting, bending, reaching, pulling, and walking. It also deferred to the employer's judgment that these physical demands were essential to the position.

That's another reminder that job descriptions shouldn't collect dust in an HR file cabinet. They should accurately describe what employees actually do. If they don't, they'll be far less persuasive when litigation arrives.

Second, temporary accommodations don't become permanent obligations.

This is the biggest takeaway from the decision.

The court reiterated its longstanding rule that employers should not be punished for trying to help employees. Providing a temporary accommodation while evaluating an employee's medical condition doesn't mean the employer has conceded that the accommodation is reasonable forever.

As the court explained, employers don't make a job function "non-essential" simply because they voluntarily accommodate an employee for a limited period of time.

That's an important rule. Otherwise, employers would have every incentive to refuse temporary flexibility out of fear that generosity would later be used against them in court.

Third, the ADA doesn't require eliminating essential job functions.

Reasonable accommodation means helping a qualified employee perform the essential functions of the job—not removing those functions altogether.

Because standing, bending, lifting, and similar physical activities were essential functions of this production job, permanently excusing the employee from performing them wasn't a reasonable accommodation. By the time Zoltek made its termination decision, the employee's restrictions prevented her from performing multiple essential job duties, even with accommodation.

That's why the court affirmed summary judgment for the employer.

The takeaways

Employers shouldn't hesitate to provide temporary accommodations while they gather medical information or determine whether an employee's condition will improve.

The ADA encourages flexibility. It doesn't punish it.

Just remember to do three things:
  • Maintain accurate, up-to-date job descriptions that identify the position's essential functions.
  • Clearly document when an accommodation is intended to be temporary while additional medical information is obtained.
  • Continue the interactive process as circumstances change rather than assuming yesterday's accommodation automatically remains reasonable forever.

A temporary accommodation is exactly that—temporary. As Kendall v. Zoltek demonstrates, extending grace to an employee today doesn't rewrite the essential functions of the job tomorrow.

Can you fire an employee for criticizing your DEI program on LinkedIn?

"The company has allowed outright hate to proliferate."

That's one of the statements that got John Richardson fired.

Richardson, a data engineer at Apex Fintech Solutions, published a series of LinkedIn articles criticizing what he viewed as the company's DEI culture. He accused Apex of tolerating anti-male discrimination, fostering a hostile work environment, and allowing managers to engage in discriminatory conduct without consequence.

Apex demanded he remove what it called "false, derogatory, disparaging, and/or defamatory" statements. When Richardson asked the company to identify what, specifically, was false, it didn't. Instead, it fired him—and then sued him for defamation.

Last week, an NLRB administrative law judge concluded Apex violated the National Labor Relations Act.

Whether you agree with Richardson's views is beside the point. The issue wasn't whether he was right. It was whether federal labor law protected his speech.

According to the ALJ, it did.

The judge found Richardson's LinkedIn posts were protected concerted activity because they addressed employees' working conditions and encouraged coworkers to take collective action, including filing EEOC charges. The NLRA doesn't limit protected discussions to the workplace. Employees can exercise their Section 7 rights on social media just as they can in a break room.

Apex argued Richardson's posts lost the Act's protection because they were false and defamatory.

The ALJ disagreed.

The NLRA does not protect statements that are knowingly or maliciously false. But employers don't get to strip employees of statutory protection simply because management believes the criticism is unfair, exaggerated, or damaging to the company's reputation.

According to the ALJ, Apex failed to prove Richardson knowingly made false statements. In fact, when Richardson asked the company to identify what was supposedly false, it never did.

That's an important distinction. Employees can criticize management, express opinions, and use strong rhetoric without automatically losing the Act's protection.

The termination wasn't the only problem. The ALJ also concluded Apex unlawfully ordered Richardson to stop discussing workplace issues publicly, maintained overly broad confidentiality and non-disparagement policies that could chill protected employee speech, and retaliated by filing a defamation lawsuit based on Richardson's protected activity.

That last point is particularly noteworthy.

Employers certainly can sue employees for genuine defamation. But when the underlying speech is protected by the NLRA, a lawsuit itself can become an unfair labor practice if it's intended to punish or silence protected activity.

Too often, employers respond to public criticism by trying to make it disappear. They send a cease-and-desist letter, demand the post come down, threaten litigation, or terminate the employee.

That's a risky strategy. Indeed, before taking any action, ask these questions:
  • Is the employee discussing wages, discrimination, safety, scheduling, management practices, or other working conditions?
  • Are they speaking only for themselves, or attempting to involve coworkers?
  • Does the post invite collective action?
  • Are the challenged statements factual assertions that can actually be proven false, or are they opinions and rhetoric?
  • If you believe factual statements are false, can you specifically identify them and prove they were knowingly or maliciously made?

How you and your labor counsel answer these questions will inform and advise whether you are dealing with protected concerted activity.

Social media has become today's break room or water cooler. Employees don't lose their Section 7 rights because the conversation happens on LinkedIn instead of over coffee.

Often times the smartest response isn't trying to silence the criticism.

It's recognizing that employees have broad rights to criticize their workplace—even publicly—and ensuring your response doesn't become the much bigger story.

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