Thursday, April 23, 2015

Fired for What!? - The Great Popeye's Fried Chicken Caper

A Popeye's shift manager (who happens to be pregnant) was fired from her job. Why? Well, she claims she was fired because an armed robber held up her store and she refused to pay back the money the robber stole. The franchise owner claims she "was fired because she didn't follow company policy, leaving too much money in the cash register. And this wasn't her first offense."

The plot thickens! Now, Popeye's corporate has weighed in: "We have spoken to the local franchise owner of the restaurant, and he has taken immediate action to reach out to the employee to apologize and rectify the situation."

Does she have her job back? Who robs a Popeye's? Why don't we have delicious Popeye's fried chicken and the $1.19 two-piece meal special here in State College? So many questions left unanswered . . . .

Monday, April 20, 2015

Miles on Braun v. Wal-Mart

Straight from the shameless self-promotion department . . . the latest issue of the Pennsylvania Bar Association Civil Litigation Section Newsletter is now available. Jump straight to my summary of the PA Supreme Court's opinion in Braun v. Wal-Mart here.

The PA Supreme Court affirmed a $188 million judgment against Wal-Mart for wage and hour violations. Wal-Mart has a petition for certiorari pending before the United States Supreme Court.

April Employment Law Blog Carnival (#ELBC) is LIVE!

The latest edition of the Employment Law Blog Carnival (#ELBC for the cool kids on Twitter) is now available: The April Showers Edition. Thanks to Ari Rosenstein at CPEhr for hosting!

Wednesday, April 15, 2015

Lawffice Links - Hodge Podge

I've had a busy week, so please excuse the dearth of blogging. There have been a few interesting employment law developments that deserve some recognition though. Have some Lawffice Links to get caught up:

Thursday, April 9, 2015

EEOC on Transgender Harassment, Discrimination, and Restrooms

The EEOC issued an important new decision regarding transgender discrimination in Lusardi v. Dept. of Army (linked here, embedded below). The employee transitioned from a man to a woman and explained the transitioning process to (now-) her employer.

Rather than allow the employee to use the common women's restroom, the employer required her to use a single-use restroom (the employer claims the employee collaborated on this plan). The EEOC held that denying the employee use of the common women's restroom was disparate treatment on the basis of sex in violation of Title VII. To get there, the EEOC had to hold that the bathroom denial rose to the level of "adverse employment action" - a call that could easily go either way.

Also, the employee's team leader continued to occasionally refer to her by her male name, using male pronouns, and often calling her "sir." The EEOC concluded that this was sex-based harassment. Whether these incidents constituted "severe or pervasive" harassment (a requirement for harassment claims) was another close call.

Clearly, the EEOC has gone all-in on utilizing Title VII to protect transgender employees from workplace discrimination. Whether courts will address these issues in the same manner remains an open question.


Tuesday, April 7, 2015

New NLRB Guidance on Quickie Election Rules

Not official use.
The NLRB's new "quickie election" rules - more recently dubbed "ambush elections" by employers - are set to take effect on April 14, 2015 (one week from today). If you were just sitting around thinking, "I wish there was a clear, concise, 36-page memo to explain the changes" . . . then great news! The NLRB's General Counsel just published Memorandum GC 15-06: Guidance Memorandum on Representation Case Procedure ChangesEffective April 14, 2015. Enjoy!

Monday, April 6, 2015

The NLRA protects *that* Facebook post!?

If an employee uses social media to address the terms and conditions of employment with his or her fellow co-workers, then the posts are generally protected by the National Labor Relations Act (NLRA). So, for example, if an employee posted "Vote YES for the UNION!!!!!!!" on Facebook and his Facebook friends included co-workers, then the NLRA protects that post. In other words, the employer would violate the NLRA if it fired the employee for such a post.

However, such speech can lose its protection if it is too egregious, abusive, malicious, or highly profane. [Earmuffs kids, the language is about to get "Parental Advisory"]. In Perez Pier Sixty, an employee posted the following to Facebook:
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!!!! Vote YES for the UNION!!!!!!!
Now, surely that post lost its protection for... ya know... the f-your-mom part? Right? RIGHT!?

Nope! The NLRB actually held that the Facebook post was protected activity under the NLRA. The NLRB relied in part on the employer's tolerance of profanity in the workplace. So, apparently if employer's tolerate some cursing in the workplace, employees have a right to post this profane vitriol online so long as they toss a "Go Union!" on the end.

HT: Eric Meyer via The Employer Handbook. I'm not gonna lie . . . at one point I checked the date on his blog entry to make sure it wasn't April 1. Nope, April 3.