Wednesday, August 31, 2011

Truthful Blogging = Tortious Interference with Contract?

My apologies for the lack of blogging this week. My wife and I recently added a new member to our family so I have been a little (actually, A LOT) preoccupied. Now, back to your regularly scheduled blog entry...

The Minneapolis Star Tribune has some bad news for bloggers: Blogger Johnny Northside Must Pay $60,000 to Fired Community Leader. The short version of the fact pattern:
Though blogger John (Johnny Northside) Hoff told the truth when he linked ex-community leader Jerry Moore to a high-profile mortgage fraud, the scathing blog post that got Moore fired justifies $60,000 in damages, a Hennepin County jury decided Friday.
The lawsuit was based on a "tortious interference of contract" theory. Surely truthful criticism is protected by the First Amendment though, right? Prof. Eugene Volokh thinks so: "people are constitutionally entitled to speak the truth about others, even with the goal of trying to get them fired." As Volokh also points out, the Restatement (Second) of Torts addresses this issue:
One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person . . . truthful information.
I'll note that a comment in the Restatement further clarifies (my emphasis added):
There is of course no liability for interference with a contract or with a prospective contractual relation on the part of one who merely gives truthful information to another.
Although the Minnesota state court disagrees in this case, my Pennsylvania readers can rejoice. In Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., the Pennsylvania Superior Court adopted the Restatement on this issue, concluding that " true statements may not be the basis for a claim of intentional interference with contractual relationships."

Bloggers and employment lawyers may want to keep an eye on this one. Volokh's sources tell him an appeal is forthcoming...

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, August 26, 2011

Res Judicata No Bar to Events Postdating Initial Complaint - COTW #55

The Case of the Week was going to be the lifeguard alleging age discrimination because of a speedo requirement - but as the link shows, Jon Hyman already has that one covered. Also, the Third Circuit recently ruled on an important timing issue in a matter of first impression. So, the Case of the Week is now Morgan v. Covington Tp., 2011 WL 3276012 (Aug. 2, 2011).

As the case presents a timing issue, it would help to start with a timeline:

- Sometime prior to November 5, 2007, a public employee files a First Amendment retaliation complaint in federal court based on disciplinary action (including an administrative hearing scheduled for November 5, 2007). We'll call this "Morgan I."
- The employer goes ahead with the hearing and on January 15, 2008, the employer decides to terminate the employee.
- The employee waits until April 9, 2009 to file a motion to amend his complaint to include the termination.
- The Court denies his motion to amend because trial is just 11 days away, on April 20, 2009.
- The Plaintiff files another Complaint ("Morgan II") prior to trial in Morgan I.
- The Defendants all win at jury trial in Morgan I.
- The Defendants move to dismiss Morgan II because the issues have already been litigated in Morgan I and the Plaintiff should be barred from getting another shot (This is called Res Judicata for you non-law folks).
- The trial court agrees and tosses Morgan II.

Did you get all of that? That brings us to the Third Circuit opinion. As a matter of first impression, the Court adopted the bright line rule that "res judicata does not bar claims that are predicated on events that postdate the filing of the initial complaint." In other words, because the termination occurred after he filed the complaint in Morgan I, Morgan II is back on.

This is a "bright line" rule that is easy to adopt... if the events from the second complaint occurred after the filing of the first complaint, then res judicata does not bar them. This clarity and ease of application benefits litigants. It's a tough pill to swallow in cases like Morgan though. This guy waited fifteen months to try to amend his complaint eleven days before trial... and now, the Courts and both parties are stuck wasting their time and resources relitigating the same issues that a jury already decided. But, as the Third Circuit noted, "certainty and predictability are important."

Sidenote: For my non-Third Circuit readers, the Court noted that five other circuits have adopted this bright line rule: the Second, Sixth, Seventh, Tenth, and Eleventh.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, August 25, 2011

NLRB's New Posting Requirement

The NLRB issued a press release today, announcing a final rule that will "require employers to notify employees of their rights under the National Labor Relations Act." If you're really curious, you can read the full 194-page final rule here. If you're a little lazier, the NLRB issued a fact sheet with some Q&A. If you're even lazier than that, here are some highlights:
  • Who: "[N]early all private-sector employers subject to the National Labor Relations Act" (aka almost everyone), including non-union workplaces. There's also an exception for really small businesses "whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce."
  • What: You can get copies of the official notice from the NLRB's regional offices on or before November 1, 2011. Or you can print it out from the Board's website "on one 11-by-17-inch paper or two 8-by-11-inch papers taped together."
  • When: Effective November 14, 2011.
  • Where: The rule requires a physical posting and "on an internet or intranet site if personnel rules and policies are customarily posted there."
  • Why: "Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act." You don't want that.
Image: Public Domain work of federal government. Used in commentary on NLRB, not an official use.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

In Case of Apocalypse... Workplace Disaster Preparedness

"Behold a pale horse, and he that sat upon him, his name was Death, and hell followed him." - Revelation 6:8.

It's summertime here in State College, Pennsylvania. Yet, on Sunday as I was driving home from the gym, my car was suddenly and relentlessly pelted by small pieces of ice - hail. Then on Tuesday, we were hit by an earthquake (you can only imagine how often we get hit with earthquakes here in central Pennsylvania). Now, the Northeast is about to get hammered by Hurricane Irene.

This can only mean one thing: the end is near. But, on the off chance the world will still exist next week, most employers have chosen to continue operation. However, recent events have prompted many employers to seek guidance regarding disaster preparedness. I'm not wasting the end of days blogging about workplace policies, but here are some helpful entries from others on the subject:

16 Best Practices for Conquering the Next Natural Disaster - Eric Meyer, The Employer Handbook.

I’m Not In Love, So Why Do My Knees Feel Weak? Workplace Crisis Management - Adria Martinelli, Delaware Employment Law Blog

Hurricane Preparedness in Connecticut: Come on Irene? - Dan Schwartz, Connecticut Employment Law Blog

And, of course, the important question on every employee's mind: If The Office Is Closed Due To Natural Disaster, Will I Be Paid? - Donna Ballman on AOL Jobs

Some are taking this lightly (see picture, which I will credit to "Every single one of my friends on Facebook" or alternatively "The Internet.") If you have a post that covers workplace disaster preparedness, please feel free to drop a comment.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, August 23, 2011

NLRB Social Media Memo Part II - Unprotected Conduct

In Part I, I covered social media acts that the NLRB deemed protected by the NLRA. Now, let’s take a look at some social media acts that are not protected.

The takeaway from Part I was that the social media conduct must: 1. Address working conditions; and 2. Involve other employees. Obviously, one way to define social media activity that is not protected would be to say that it fails to meet one of those criteria. I previously covered three examples of unprotected activity, based on prior NLRB advice.

The latest NLRB memo covers those cases, but also provides some additional examples, including one from Twitter. A reporter’s offensive tweets from a work-affiliated account about his city’s homicides (reportedly including "stay homicidal, Tuscon"), and criticism of a TV station are not protected. And why is that? Well, the tweets don’t address work-related concerns or involve co-workers.

In another case, a dispatcher for a medical transportation and fire protection services employer wrote on her U.S. Senator’s Facebook wall. She complained of low wages and a lack of trucks, and mentioned an incident in which a cardiac arrest response crew didn’t know CPR. It sounds work-related, but wears the concerted activity?

As the memo notes:
[S]he did not discuss her posting with any other employee . . . . There had been no employee meetings or any attempt to initiate group action. She was not trying to take employee complaints to management and admittedly did not expect the Senator to help her situation.
Ergo, not protected activity.

Hopefully these examples, and the previous post about unprotected social media activity have been helpful. In short, offensive posts and personal gripes that don’t seek to address work-related issues aren’t going to garner much NLRA protection.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, August 22, 2011

Lawffice Space Nominated for LexisNexis Top 25 Labor and Employment Law Blogs of 2011

LexisNexis Labor & Employment Law Community 2011 Top 50 Blogs I apologize for the barrage of posts in the last 14 hours, but I just received exciting news... Lawffice Space has been nominated as a candidate for the LexisNexis Top 25 Labor and Employment Law Blogs of 2011!

Now, I know what you're thinking, "That's great Phil, but what can I do to make sure you make the Top 25?" I'm glad you asked. Just go to the announcement post on the LexisNexis Labor and Employment Law Community and comment on the post in support of Lawffice Space.

As a sidenote, I'm pleased to announce that all of my fellow contributing authors to Think Before You Click: Strategies for Managing Social Media in the Workplace were likewise among the 59 nominees. That's good for our street cred. Congratulations everyone!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

NLRB Social Media Memo Part I - NLRA-Protected Acts

Time to tackle the NLRB’s social media memo: Report of the Acting General Counsel Concerning Social Media Cases. This is the start of the analysis, and I have a plan for future posts. My initial reaction was that the NLRB interpretation seems to afford pretty broad protection to some pretty stupid Internet posts.

One employee called her supervisor a “scumbag” (another report indicates that she also called him a “dick”) on Facebook, another employee called an owner an “asshole” in a comment on Facebook, and still other employees ganged up on a co-worker with profanity and sarcasm in comments on Facebook resulting in her reporting “cyber-bullying” and harassment. I don’t want to just rehash the memo, you’re big boys and girls and can read the details yourself. But, what do these seemingly juvenile posts have in common that the NLRA affords them protection (at least according to the NLRB memo)?

1. They Addressed Working Conditions – The immature name-calling occurred in the broader context of discussing working conditions (employer’s method of withholding taxes, employer’s poor sales event which impacted employees’ commissions; and unlawful denial of Weingarten rights); and

2. They Involved Other Employees – In most of the examples, the posts occurred in Facebook discussions (posts and comments) in which multiple employees participated. In one example, one employee posted pictures and comments alone – but he had discussed the concerns raised by the posts with employees offline (and told them he’d post the pictures) and so it was still found to be “concerted activity.”

The derogatory and offensive nature of some of the posts was downplayed and found “not opprobrious.” The Court described the various posts as “innocuous,” not threatening, or provoked by unlawful activity. Other factors weighing in favor of protection were posting off-duty, not disrupting operations, and not undermining supervisory authority.

In short, the NLRB memo interprets the NLRA as providing broad protection to employees discussing working conditions on social media... even if the posts are a little (not a lot) offensive.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Sunday, August 21, 2011

NLRA Social Media Memo Analysis: The Blueprint

Last week, the NLRB issued a memo from general counsel: Report of the Acting General Counsel Concerning Social Media Cases. I spent some time this weekend reading the memo and trying to analyze it (yeah, that’s really how I spent my weekend… don’t judge me). I plan to do a series of posts analyzing the memo, but I first want to present a plan of attack. I see the memo as addressing four major issues:
  • Why are some Facebook and other social media posts that include juvenile gripes, name-calling, and profanity covered? 
  • Why are similarly immature posts not covered? 
  • Why does the NLRB think so many social media employee policies violate the NLRA? 
  • Finally, there’s one case standing for the unremarkable proposition that union organizers showing up at a nonunion work site and harassing immigrant workers, and then posting video of it on YouTube, violates the NLRA. 
I plan a post on each of these issues. Who knows, maybe I’ll even write some more follow-up. Using examples from the memo, I think the primary concern for employers boils down to this: Why are directing profanity and sarcasm at a co-worker, calling a supervisor a “scumbag” mental patient, and calling the owner an “asshole” all protected… but calling a supervisor a “super mega puta,” and hoping “redneck” customers choke on glass are not?

Of course, the answer is "context" – and that will be the focus of my posts.

Update (8/22/2011): First post is now up: NLRB Social Media Memo Part I - NLRA-Protected Acts.

Update (8/24/2011): Second Post is now up: NLRB Social Media Memo Part II - Unprotected Conduct.

Update (9/5/2011): Third Post is now up: NLRB Social Media Memo Part III - Union YouTube Violation.

Update (10/10/2011): Fourth and final post is now up: NLRB Social Media Memo Part IV - Overly Broad Policies.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, August 19, 2011

Cat's Paw Hits 3rd Circuit - COTW #54

The Cat's Paw took a swipe at an employer in the Third Circuit on Wednesday, and it's the employment law Case of the Week. The case is McKenna v. City of Philadelphia, 2011 WL 3606834 (3d Cir. Aug. 17, 2011). But first, some background. Earlier this year, the Supreme Court recognized "cat's paw" liability. At the time, I wrote:
In Staub v. Proctor Hospital, the [Supreme] Court held that an employer may be liable where "a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action." What does this have to do with investigations? Well, the Court also expressly held that an independent Investigation by the ultimate decisionmaker does not shield an employer from liability. Does this mean the investigation is worthless? Absolutely not, but it’s not the magic bullet that employers had hoped.
The Third Circuit drove that last point home this week.

In McKenna, three terminated police officers alleged that they were retaliated against for protesting discriminatory conduct. A jury awarded them big money (like 7-figure big). But, the supervisor with the alleged retaliatory animus had referred the employees to a Police Board of Inquiry ("PBI") for disciplinary action. And the PBI conducted a hearing, affirmed the charges, and then the Commissioner terminated the employee.

The PBI was not motivated by retaliatory animus, so the employer should be safe, right? NO! Didn't I just tell you that an independent investigation does not automatically shield the employer!? In McKenna, the Court held that:
[A] reasonable jury could find that [the supervisor's] animus played a substantial role in the ultimate decision by the PBI to recommend [the employee's] termination . . . . a reasonable jury could conclude that [the supervisor's] animus bore a direct and substantial relation to [the employee's] termination and that the PBI's recommendation was not independent and was foreseeable.
If a PBI, a quasi-judicial hearing conducted by a board of three people who didn't even know the employee, is insufficient to break the chain of causation... then what the heck can an employer do to shield itself from cat's paw liability?

Well, Eric Meyer, relying on the judicial expertise of Sesame Street, describes that last question as "one humdinger of a stumper." Indeed. I'll have to address that in a future post.

Image: Loyal readers probably recognize my cat, Merlin. I consult him prior to every cat's paw blog entry. He has his own photo album on the Lawffice Space Facebook page. I added some new shots to his album, so check it out.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, August 18, 2011

BREAKING: NLRB Issues Report on Social Media Cases

This just in... the NLRB issued a press release announcing Acting General Counsel Releases Report on Social Media Cases. You can download the 24-page memorandum: Report of the Acting General Counsel Concerning Social Media Cases. The report covers the outcome of investigations into 14 cases. Facebook, Twitter, Blogging, YouTube, employer social media policies... they're all there!

Rest assured, I will be reading this thing in full and getting back to you in the not-too-distant future.

FLSA Anti-Retaliation Provision Does Not Protect Applicants

Some cases have simple fact patterns and simple holdings. The Fourth Circuit issued an opinion in one of those cases on Friday. The case is Dellinger v. Sci. Applications Int'l Corp., 10-1499, 2011 WL 3528750 (4th Cir. Aug. 12, 2011).

Natalie Dellinger sued her former employer in July 2009, alleging violations of the FLSA's minimum wage and overtime provisions. In August 2009 she received a job offer from a new employer, Science Applications (aka Defendant in this case). Ms. Dellinger disclosed her lawsuit to Science Applications as part of a form required for security clearance.

Well, guess what? Science Applications withdrew its offer. So, Dellinger sued them for FLSA retaliation. There's just one problem... FLSA prohibits retaliation "against any employee." Per the Westlaw headnote, the Court held:
Only employees can sue their current or former employers for retaliation under the Fair Labor Standards Act (FLSA), and an applicant is not an employee.
The Fourth Circuit affirmed the district court's decision to dismiss the claim.

An interesting note for my Pennsylvania and Third Circuit readers: The Court cites a Third Circuit case that "assumed, without deciding, that an applicant was covered under that Act." (Doyle v. Secretary of Labor, 285 F.3d 243, 251 n. 13 (3d Cir.2002)). It's a complicated case, but the Third Circuit actually noted that the parties did not contend that an applicant was not covered. So the Third Circuit's assumption doesn't have much (any?) precedential value on the issue.

Image: Louis F. Powell Courthouse in Richmond, VA - Home of the 4th Circuit; Public domain as work of U.S. Government.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, August 16, 2011

Mean People Make More Money

More specifically, mean men make more money. Even more specifically, mean people make more money than nice people, and the difference in salary is greater when comparing mean vs. nice men with mean vs. nice women.

The conventional wisdom that "nice guys finish last" was confirmed in a recent study, Do Nice Guys - and Gals - Really Finish Last? The Joint Effects of Sex and Agreeableness on Income. From the abstract:
Sex and agreeableness were hypothesized to affect income, such that women and agreeable individuals were hypothesized to earn less than men and less agreeable individuals. Because agreeable men disconfirm (and disagreeable men confirm) conventional gender roles, agreeableness was expected to be more negatively related to income for men (i.e., the pay gap between agreeable men and agreeable women would be smaller than the gap between disagreeable men and disagreeable women). The hypotheses were supported across four studies.
I'll keep an eye out for legislation making "nice" a protected class...

In the meantime, enjoy this video on the study (click here if video not displaying properly):



Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, August 15, 2011

Supreme Court to Allow Cameras!... Pennsylvania Supreme Court that is

No, the media will not be rolling cameras over Justice Souter's dead body into the SCOTUS courtroom. But, the Pennsylvania Supreme Court announced today that they will allow the Pennsylvania Cable Network (PCN) to cover oral arguments beginning September 13, 2011. In a press release, Chief Justice Castille said, "My colleagues and I are pleased to open our courtroom to PCN’s statewide audience so they can see how our court operates and follow arguments in cases affecting every citizen of Pennsylvania."

Set your DVRs accordingly!

Image: Five of seven judges seats in the Supreme Court chamber in the Pennsylvania State Capitol in Harrisburg, Pennsylvania, USA by Ruhrfisch via Creative Commons license.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, August 12, 2011

"Wet T-Shirt Wednesday" Lawsuit - COTW #53

When I was a young man, I would sometimes pass the time by trying to think of the best song for each day of the week. The best I could come up with was:

  • Sunday Bloody Sunday by U2
  • Manic Monday by The Bangles
  • Ruby Tuesday by The Rolling Stones
  • Waiting for Wednesday by Lisa Loeb
  • There was a band called Thursday - that's the best I could do (I didn't have Google or iTunes so cut me some slack!).
  • Friday, I'm in Love by The Cure
  • Saturday Night by The Bay City Rollers
Where am I going with this? Well, according to a recent complaint filed in district court in Utah, a woman alleges a sexual harassment claim for every workday of the week. The New York Daily News reports on the outrageous dress code that prompted the suit:
  • Mini-skirt Monday
  • Tube-top Tuesday
  • Wet T-Shirt Wednesday
  • No bra Thursday
  • Bikini top Friday
The complaint includes some other cringe-worthy allegations, such as butt-slapping, breast comments, and inquiries regarding the employee's pubic hair maintenance. Needless to say, if true, these are not ideal (or socially acceptable or legal) management practices. 


Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, August 11, 2011

ABA Accepting 2011 Blawg 100 Recommendations

Every year, the ABA recognizes the top 100 legal blogs ("blawgs"), including a number of employment law blogs (see my 2009 and 2010 coverage).

Well, they're at it again! The ABA is searching for the top 100 legal blogs of 2011. You should be aware of two things:

1. You can submit your recommendations for the best legal blogs on the ABA website - CLICK HERE TO SUBMIT A RECOMMENDATION.
2. Lawffice Space is the greatest employment law blog in the history of the world.*

Any questions?

* Views of author's mother may not reflect the views of society as a whole.

Tuesday, August 9, 2011

3rd Circuit: Performance Improvement Plan Not an Adverse Action

When employees receive poor performance reviews, employers will often give them an opportunity to redeem themselves. Of course, it's only fair to provide employees with a plan for reaching acceptable performance standards. In HR terminology, this is often referred to as a Performance Improvement Plan or "PIP,"

To state a claim for discrimination under most legal theories and employment discrimination statutes, the employee must have experienced an "adverse employment action." The Supreme Court has recognized hiring, firing, failing to promote, reassignment with different responsibilities, and changes in benefits as adverse actions. But what about PIPs?

The Third Circuit recently answered that question in an unpublished opinion in Reynolds v. Dept. of Army, No. 10-3600 (June 22, 2011). In short: No, PIPs are not adverse employment actions. More specifically:
A PIP differs significantly from the types of employment actions that qualify as adverse . . . . PIPs are typically comprised of directives relating to an employee’s preexisting responsibilities. In other words, far from working a change in employment status, a PIP is a method of conveying to an employee the ways in which that employee can better perform the duties that he or she already has. We note that a likely consequence of allowing suits to proceed on the basis of a PIP would be more naked claims of discrimination and greater frustration for employers seeking to improve employees’ performance. Thus, because [Plaintiff] failed to demonstrate that his PIP was accompanied by an adverse change in the conditions of his employment, we hold that [Plaintiff's] placement on the PIP did not qualify as an adverse employment action.
The Third Circuit joins the Seventh, Eighth, and Tenth Circuits in holding that PIPs are not adverse employment actions for purposes of employment discrimination claims.

HT Maria Danaher, Employment Law Matters: Performance Improvement Plan (PIP) is not an "adverse employment action" for purposes of federal anti-discrimination laws, including a copy of the opinion.

Image: Public domain work of federal government; Not official use or endorsed by federal court.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

New PBA Civil Litigation Update Case Summaries

The Summer 2011 issue of the Pennsylvania Bar Association Civil Litigation Update is now available online. I contributed two case summaries to this issue.

One of the things I enjoy about writing for this publication is that I am often forced to cover cases outside of my usual practice. It's difficult to sort out the law sometimes, but it's a valuable practice. For example, in this issue I wrote about the Deficiency Judgment Act and Petitions to Fix Fair Market Value. My other summary covers a Pennsylvania procedural issue: "Superior Court Holds Party Must File Post-Trial Motions, Not Direct Appeal, Following Trial Judge’s Assessment of Damages on Remand."

Lawffice Space readers searching for the usual employment law content may be interested in "Pennsylvania Supreme Court Adopts 'Truthfulness' Defense for Tortious Interference with Contractual Relations Claims."

NLRA Right to "Fight" - Court Cites YouTube

The National Labor Relations Act (NLRA) generally protects employees' right to fight for better working conditions. Well... not fight, but ya know, "fight." What's the difference? The D.C. Circuit Court of Appeals covered the distinction in a recent case, Kiewit Power Constructors Co. v. NLRB (.pdf).

The employer warned two of its electricians that their breaks were too long, and that they may need to take them in a different location. The electricians responded by saying things would "get ugly" if they were disciplined and the supervisor "better bring [his] boxing gloves." And then they were fired for threatening workplace violence.

But wait, the NLRB reinstated them, finding that the statements "were merely figures of speech made in the course of a protected labor dispute." The D.C. Circuit agreed, noting:
It is not at all uncommon to speak of verbal sparring, knock-down arguments, shots below the belt, taking the gloves off, or to use other pugilistic argot without meaning actual fisticuffs.
The Court then went on to hold:
To be sure, [the employees'] statements were intemperate, but they did not involve the kind of insubordination that requires withdrawing the Act’s protection. It would defeat section 7 if workers could be lawfully discharged every time they threatened to "fight" for better working conditions.
One interesting aspect of the opinion, was how the Court chose to highlight the distinction between fighting metaphors and actual fighting... YouTube. The Court used two YouTube videos to highlight the different meanings of "the gloves are coming off" or "dropping the gloves." First, this video with the Caps' Ovechkin dropping the gloves:


If video is not displaying properly, click here to watch on YouTube.
And then there's this video of Sarah Palin, "the gloves are coming off" (they disabled embedding for this one so you have to go to YouTube). They even cite another video with Jimmer highlights, "destroying" the opponent. But seriously, we're all still sick of Jimmer highlights, right?

Maybe one day, instead of briefs, we'll all be submitting multimedia websites with videos and Facebook "Like" buttons. For now, we'll have to settle for a few YouTube citations in the Court's opinion.

HT: Blog of Legal Times (BLT): Appeals Court: 'It's Going To Get Ugly' Was Not A Threat.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, August 5, 2011

Smuggling Gigs in a Bra - COTW #52

Remember when movies only cost a nickel? Me either. But I do remember when floppy disks were 5.25" and only held about a meg - 1.2 MB to be precise. Now, you can buy a 4 gig flash drive for about $5 (a gig, or GB, is 1,000 MB). And, it's all on a drive small enough to fit in your... bra?

Bloomberg has the story: TCW Employee Says She Smuggled External Hard Drive in Bra. A group of employees left their employer to start their own company. Prior to leaving, one of the employees was placed on administrative leave and escorted from the building. A female co-worker testified that, on the same day, she encountered a co-worker with a hard drive. The contents are unclear from the article... perhaps some mix of personal and employer data. And then? "I said 'give it to me' and stuffed it in my bra." She then found the employee who had been escorted out, and went to his car where she gave him the hard drive.

Now, the employer alleges that the hard drive contained confidential and proprietary information. The employer also claims that some of the employees were terminated for stealing trade secrets and confidential information, including client portfolio information. The lesson for employers is clear: implement Naked Office immediately... just kidding. The case does highlight some data security risks though. It's important to understand that mountains of data can now walk right out the front door on something the size of a key chain.

Case: Trust Co. of the West v. Gundlach, BC429385, California Superior Court, Los Angeles County.

HT: Andrew Slobodien, @LaborLawLawyer via Twitter.

Special Announcement: This is Lawffice Space Case of the Week #52... and there are 52 weeks in a year... so by my calculations this marks the one-year anniversary of Case of the Week [Cue noisemakers and confetti].

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, August 4, 2011

Must Pennsylvania Employers Pay Unused Vacation at Termination?

Piggybacking off of Jon Hyman's post on Ohio Employer's Law Blog, Must Employers Pay Unused Vacation at Termination? It Depends, this post will specifically address Pennsylvania employers. In general, it's up to the employer. But, unused vacation time is considered a "wage" and "fringe benefit" under the Pennsylvania Wage Payment and Collection Law (WPCL).

Why does this matter? Lawffice Space readers may recall that Wal-Mart recently experienced the awesome power of the WPCL. In short, the WPCL allows employees to recover their unused vacation time plus attorney's fees, costs, interest, and sometimes even additional liquidated damages.

But, the WPCL does not create the obligation to pay unused vacation time. Whether such an obligation exists is up to the employer and whatever agreement they reach with the employee. Employers need to be careful to ensure consistency across their communications with employees though.

An offer letter, employee handbook, employment contract, or other communications may indicate that an employee gets paid for unused vacation time upon termination. Any one of those could end up being "Exhibit A" in a WPCL claim if the employer denies the employee vacation pay on termination.

Image: Personal photograph of cruise ship in Alaska... although now that I think about it, this post is about unused vacation time. Oh well.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, August 3, 2011

The Right to Make and Sell Caskets

I have an offbeat employment law slash Constitutional law post today. In the United States, individuals generally have a right to engage in a lawful occupation of their choosing - what Thomas Jefferson might call the "pursuit of happiness" - what parents describe to their children as "you can be whatever you want when you grow up." Of course, this is subject to some regulation in modern America, including occupational licensing.

Now, let's say a group of Benedictine monks choose to make and sell caskets as part of their ministry and to make money for their monastery. And, let's assume they're located in Louisiana. Bad news for them: they're not licensed funeral directors and their Abbey is not a licensed funeral establishment. Under Louisiana law, they are therefore prohibited from making and selling caskets.

Enter the Constitution. While it does not expressly include a "right to sell caskets," it does include a right to due process and equal protection under the law. These clauses generally prohibit state infringements of liberty absent a legitimate government interest. Under the lowest level of scrutiny, courts only require a "rational basis" for most "economic liberty" cases.

So, what government interest is served by forcing monks to obtain funeral director licenses before making and selling wooden boxes in which to bury people? Well, a Louisiana federal court couldn't find one:
There is no rational basis for the State of Louisiana to require persons who seek to enter into the retailing of caskets to undergo the training and expense necessary to comply with these rules. Simply put there is nothing in the licensing procedures that bestows any benefit to the public in the context of the retail sale of caskets. The license has no bearing on the manufacturing and sale of coffins. It appears that the sole reason for these laws is the economic protection of the funeral industry which reason the Court has previously found not to be a valid government interest standing alone to provide a constitutionally valid reason for these provisions.
The licensing restriction was therefore held unconstitutional. For now, the monks have vindicated their right to make and sell caskets.

Citation: St. Joseph Abbey v. Castille, No. 10-2717 (E.D. La. July 21, 2011).

Image: St. Benedict public domain.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.