Friday, September 30, 2011

BREAKING: NLRB Judge Rules on Facebook Case

The NLRB just issued a press release announcing: Administrative Law Judge rules Chicago car dealership had overly broad employee policy, but discharged employee’s activity not protected. You can read the full decision here. Note that this was one of the cases covered by the NLRB's social media memo, in which they concluded that the employee was engaged in concerted, protected activity under the NLRA.

The employee had posted photos and mocking commentary of a car accident that took place at the car dealership (apparently a car went into a pond). The administrative law judge was not amused:
I find that Becker’s posting of the Land Rover accident on his Facebook account was neither protected nor concerted activities, and Counsel for the General Counsel does not appear to argue otherwise. It was posted solely by Becker, apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.
There was some other Facebook activity that was arguably protected (Update: the Judge in fact notes that he found it to be concerted, protected activity) but the Judge ruled that the employee was fired for the accident-related Facebook posting.

The Judge did order the employer to post notice that it will not enforce the overly broad provisions of its handbook, and alerting employees to their NLRA rights.

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.

EEOC Weighs in on Obesity Discrimination - COTW #60

"Weighs in" - get it? I stayed up all night thinking of that one. The latest employment law Case of the Week comes from a lawsuit filed by the EEOC on behalf of an ex-BAE Systems employee. The EEOC claims that the man's employer fired him because of his morbid obesity. Per the EEOC's press release:
BAE refused to engage in any discussion with him to determine whether reasonable accommodations were possible that would have allowed him to continue to perform the essential function of his job, the EEOC said. The suit asserts that BAE replaced Kratz with someone who was not morbidly obese.
But wait, since when is weight a protected class?

It's not (at least under federal law). But disability is, and that's the theory the EEOC is hanging its hat on. It described the employee's morbid obesity as a disability, and further notes that his employer regarded him as disabled. A few ADA notes: To be covered, the employee must have a disability OR a record of a disability OR (and this is the big one) be regarded as disabled. The ADA was recently amended by the ADAAA to (forgive my editorializing for a moment) cover just about everyone under the sun under the "regarded as" theory.

So, while weight is not covered, employers dealing with someone who is "morbidly obese" - or in ADA terms, someone whose weight "substantially limits one or more of the[ir] major life activities" - then accommodation may be in order. And termination may lead to discrimination claims (unless there is a legitimate non-discriminatory reason, of course).

But that Abercrombie cashier canned because she *gasp* gained five pounds, probably not protected... by federal law. Keep in mind that state laws may expressly protect weight. For example, if Hooters fired a waitress for putting on weight in Michigan, she might have a claim.

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, September 29, 2011

Looks Like Health Care's Hittin' SCOTUS

Big day yesterday! The federal government petitioned the Supreme Court to hear an appeal from the 11th Circuit ruling that the health care reform law (aka "ObamaCare", actually known as "Patient Protection and Affordable Care Act") was unconstitutional. Just for good measure, the challengers (26 States!) filed their own petition.

On the big question, whether the individual mandate exceeds Congress's power under the commerce clause, the Eleventh Circuit held that the law is unconstitutional. The Sixth Circuit went the other way, holding it was a-OK. And the Fourth Circuit kinda ducked the issue on procedural grounds - but interpreted the mandate as a tax (with all due respect to the Fourth Circuit, I don't think the "tax" theory is gonna fly).

With this kind of circuit split, and the federal government agreeing with a majority of state governments that the Supreme Court should decide the issue... how can the Supreme Court say no? Not to mention a host of district courts splitting on the issues. We should get one of the most interesting commerce clause SCOTUS opinions in our nation's history!

I said "should" - they could always just punt on the big issues with some kind of standing-based argument. Or, we could get some kind of messy split with a few Justices holding it's a tax, some holding it's OK/not-OK under the commerce clause, others finding lack of standing - but let's cross our fingers for a nice, clean, commerce clause ruling.

HT: Volok Conspiracy with links to the petitions courtesy of ACALitigation Blog.

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, September 28, 2011

Not-so-Live, from Bellefonte, PA!

Monday was my second straight workday at a courthouse. If I could figure out how to resize photos (apart from manually editing the HTML) in Blogger's iPhone app, it would have been a "Live" blog entry. Oh well, enjoy the Centre County Court of Common Pleas in beautiful Bellefonte, PA (and no, I didn't get an endorsement deal - Pepsi guy just happened to be there)!



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, September 27, 2011

Text Message, Email, and Social Media Authentication

Good news! You found some text messages that really help your case. Now, how do you authenticate them? Authentication is a prerequisite for admissibility of evidence - so like Ron Burgundy, it's kind of a big deal.

Earlier this month, the Superior Court of Pennsylvania addressed the authentication of text messages in a criminal case, Com. v. Koch, 2011 WL 4336634 (Sept. 16, 2011). As a matter of first impression, the Court held that text messages on the defendant's cell phone were not properly authenticated. Specifically, per the Westlaw Headnote:
Police detective's description of how he transcribed drug-related text messages from defendant's cellular phone, together with his representation that the transcription was an accurate reproduction of text messages on the phone, was insufficient to authenticate the identity of the author as defendant . . . [A]lthough the phone was found on the table in close proximity to defendant, Commonwealth conceded that defendant did not author all of the text messages on her phone, no testimony was presented from persons who sent or received the text messages, there were no contextual clues in the drug-related text messages themselves tending to reveal the identity of the sender.
You mean those awesome text messages aren't coming in? Yup.

Oh, and those awesome emails you have? Well, you might want to take steps to make sure you can authenticate those as well. The Court specifically noted in its analysis:
[T]he difficulty that frequently arises in e-mail and text message cases is establishing authorship. Often more than one person uses an e-mail address and accounts can be accessed without permission. In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.
I don't think I'm making too much of a leap here to suggest that authentication of social media may require more than just, "it came from your account" too. Ahh, applying age-old evidentiary rules in new ways... isn't this fun?

HT: My colleague Jon Stepanian (@jbstepanian) emailed me this Legal Intelligencer article on the case. Jon authors a health law and policy blog, Defense of Medicine.

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, September 23, 2011

Live, from Williamsport, PA!

Blogger has a new iPhone app that lets me blog from my phone. So I am testing it out with some pictures from Lycoming County. Enjoy!


Sidenote: Apparently the Blogger iPhone app can't quite figure out that the pictures should be resized to actually fit inside the post-area of my blog. I apologize if you came to the site and it was all messed up. It should be fixed now.

Update: I also wanted to add this edited picture (effect added via Instagram):


Thursday, September 22, 2011

"Best B*** J**s on the #8 Line" - COTW #59

The latest Case of the Week is a flashback; we're travelling all the way back to late, great, nineteen ninety-eight. Hostile work environment claims based on sexual harassment require that the harassing conduct be subjectively offensive. That is, the Plaintiff must find the conduct offensive and the harassment must be unwelcome.

In Sublette v. Glidden Co., 1998 WL 964189 (E.D. Pa.), the Plaintiff alleged that her co-worker "repeatedly requested oral sex from her and leered at her while making suggestive comments." Also, a shift supervisor "made comments about her breasts," among other things. Sounds like we could have a hostile work environment claim here, right?

But wait... the conduct must be unwelcome and offensive to the Plaintiff. It sounds offensive. But, how can we possibly tell if this particular Plaintiff found it offensive? I'm glad you asked! Maybe the Defendants have evidence of:
1. Plaintiff's crude and vulgar language; 
2. Plaintiff's discussions with her co-workers of her intimate relations with her husband; 
3. Plaintiff's act of wearing a sign essentially saying “Best Blow Jobs on the # 8 line;” 
4. Plaintiff's act of ripping her t-shirt and exposing her cleavage; 
5. Plaintiff's act of wetting her t-shirt and standing in front of a large industrial fan to show off her breasts; 
6. Plaintiff's use of sexual innuendo including her comment apparently offering a “blow job” to a co-worker; 
7. Plaintiff's permitting a male co-worker to imprint his handprint in paint on the back bottom of her t-shirt, on her buttocks; and 
8. Plaintiff's touching of male co-workers on their thigh and buttocks during working hours.
As the title of this post gives away, number three is my favorite!

The Court had "little difficulty" finding that the evidence was relevant and therefore possibly admissible. The Court did, however, reserve the right to examine whether the probative value outweighed any unfair prejudice as the case developed (if not, it may still be inadmissible).

Lesson for employees: be careful how you present yourself at work! For employers: document inappropriate behavior.


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, September 21, 2011

Disney's Employee Handbook from 1943

Major hat tip to Tim Eavenson, who dug up this little gem: The Ropes at Disney's - an employee handbook from 1943, published by their Personnel Department. It's like taking a time machine back to the HR department of the 40s.

The first thing I noticed was how friendly the handbook seemed. It even included some cool illustrations (I mean, it is Disney after all). There were, however, a few signs of the times. For example, there are different sick policies for men and women. Men got 5 sick days with no more than 3 consecutive, whereas women received 10 days and up to 5 consecutive. And then there's the Disney Penthouse Club - "Men only! Sorry, gals. . . . ."

These are terms I generally try to avoid in employee handbooks. That said, I think the 1943 handbook is still a vast improvement over the 1970s policies of Tiger Mike (the all-time champ of great HR).

Update: Jon Hyman has also weighed in on this old Disney handbook - We've Come a Long Way Baby. He notes the inclusion of violation of the United States Espionage Act as grounds for termination.

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, September 20, 2011

CBA Speculation Not a "Necessitous and Compelling" Reason for Unemployment Compensation

In Pennsylvania, employees can generally collect unemployment compensation benefits when they are terminated (unless they engaged in willful misconduct). However, under some circumstances, employees can collect unemployment compensation benefits even when they voluntarily quit their jobs. The employee must have a "necessitous and compelling" reason for leaving though.

In Philadelphia Housing Authority v. UCBR, the Commonwealth Court of Pennsylvania addressed whether speculation over ongoing collective bargaining agreement (CBA) negotiations can be that "necessitous and compelling" reason. The employee had a pretty sweet pension plan, but the CBA was about to expire. He was worried that he would lose those benefits (or at least that they would be drastically reduced) under the new CBA so he retired.

Judge Cohn Jubelirer noted that CBA negotiations were "ongoing" and included "possible" changes to the pension program, which the employee "believed" would result in substantial cuts to his pension. The Court held:
[B]ecause Claimant's decision to retire was based upon speculation about the terms of a future CBA and how those might affect his pension benefits, Claimant's decision to voluntarily retire at a point in time when he perceived his pension terms to be most favorable for him did not provide him with a necessitous and compelling reason to quit.
Therefore, the employee was not eligible for UC benefits under Pennsylvania law.

Image: Personal photograph of Centre County CareerLink, where UC Referee hearings are held.

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.

Saturday, September 17, 2011

In Honor of Constitution Day

On this day, in 1787, the United States Constitutional Convention signed the Constitution. We now observe this day as Constitution Day. In fact, it's an official U.S. observance:
(a) Designation.— September 17 is designated as Constitution Day and Citizenship Day. 
(b) Purpose.— Constitution Day and Citizenship Day commemorate the formation and signing on September 17, 1787, of the Constitution and recognize all who, by coming of age or by naturalization, have become citizens. 
(c) Proclamation.— The President may issue each year a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings on Constitution Day and Citizenship Day and inviting the people of the United States to observe Constitution Day and Citizenship Day, in schools and churches, or other suitable places, with appropriate ceremonies. 
(d) State and Local Observances.— The civil and educational authorities of States, counties, cities, and towns are urged to make plans for the proper observance of Constitution Day and Citizenship Day and for the complete instruction of citizens in their responsibilities and opportunities as citizens of the United States and of the State and locality in which they reside.
36 U.S.C. 106.

I have previously blogged about Constitution Day, and my annual "celebration" - I read the Constitution. For those of you looking for even further reading on the Constitution and the arguments over its ratification, I found the following extremely informative: The Federalist (Madison, Hamilton, and Jay), the Anti-Federalist Papers, and for those of you looking for something written after the 18th century, I enjoyed Pauline Maier's Ratification: The People Debate the Constitution, 1787-1788.

Image: I took that photo of Independence Hall in Philadelphia, Pennsylvania.

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, September 16, 2011

5th Circuit Recognizes Age-Based Hostile Work Environment - COTW #58

Hostile work environment claims are nothing new. But, what a lot of people don't know is that they are actually based on discrimination statutes. Your work environment may be hostile, but if the hostility is not based on a protected class then you probably don't have a claim.

Hostile work environment claims generally arise from Title VII (protecting sex, race, religion, color, national origin). However, age is a protected class under a separate statute, the ADEA. Whether the ADEA creates a cause of action for hostile work environment is an open question in many jurisdictions - but, after the latest Case of the Week, not the Fifth Circuit!

In Dediol v. Best Chevrolet, Inc., the Fifth Circuit held:
[T]he ADEA and Title VII share common substantive features and also a common purpose: "the elimination of discrimination in the workplace . . . . [T]he broad application of the hostile-environment doctrine in the Title VII context; the general similarity of purpose shared by Title VII and the ADEA; and the fact that the Title VII rationale for the doctrine is of equal force, all counsel" the result that a claim for hostile work environment based on age is recognized under Title VII.
(quoting Crawford v. Medina General Hosp., 96 F.3d 830 (6th Cir. 1996)). A little sidenote here, in Gross v. FBL, the Supreme Court recently rejected the idea that Title VII and the ADEA should be interpreted identically. That said, they are similar so the Fifth (via the Sixth) Circuit's analysis here seems sound.

So, what kinds of facts might support such a claim? Well, in Dediol the employee requested time off to volunteer at a church event. His supervisor allegedly replied, "You old mother******, you are not going over there tomorrow" and "if you go over there, [I’ll] fire your f*****g ass." And then, the supervisor "never again referred to him by his given name, instead calling him names like 'old mother******,' 'old man,' and 'pops.'" Note to employers, profanity makes everything sound worse (compare "old" to "old mother******").

What about here in Pennsylvania and the Third Circuit? Ahhh, a tease for a future blog entry (check back next week).

A ton of blogs have covered this case already, but here are some good ones: Eric Meyer's This old mother****** may just have an age discrimination claim; and Paul Mollica's case summary in Outen and Golden Employment Law Blog.


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, September 15, 2011

Will the Unemployment Discrimination Bill Become Law?

Earlier today, I had a conversation with Judy Greenwald from Business Insurance magazine. We discussed the proposed law to prohibit discrimination against job applicants on the basis of unemployment status. She published an article: American Jobs Act would prohibit discrimination based on unemployment status, which includes my thoughts on the bill's prospects:
Philip K. Miles III, an associate with the McQuaide Blasko law firm in State College, Pa., said he sees little chance of the proposal's passage, either as a free-standing bill or as part of the overall jobs act. The proposal "essentially creates a new protected class and also creates a new litigation risk for employers seeking to hire employees," he said.
"I think Congress would be very hesitant to increase risks in the hiring process because it may have some chilling effect on businesses' hiring, and of course there's a very partisan divide" over any White House proposal right now, Mr. Miles said.
Check out the full article for more information on the "Fair Employment Opportunity Act" - and feel free to come back and mock me mercilessly in the comments if the bill becomes law!

Details on Proposed Unemployment Status Discrimination Law


Ladies and gentlemen, we've got text. On Monday, I reported that President Obama’s American Jobs Act would include provisions that prohibit discrimination against job applicants on the basis of their unemployment status. As a follow-up, you can now read the full text of the proposed legislation here. The “Prohibition of Discrimination in Employment on the Basis of an Individual’s Status as Unemployed” runs from pages 129 through 134. Here’s a brief overview:

Short Title
Fair Employment Opportunity Act of 2011

Findings
This section is frankly pretty weak. It just says that such discrimination hurts the economy, burdens welfare programs, and depresses tax returns. There is no discussion of the severity of the problem, or any attempt to assess the actual impact (if this gets serious consideration, maybe Congress will beef up this section a little).

Definitions
Covered “employers” are defined as having 15 or more employees.

Protected “status as unemployed” means “the individual, at the time of application for employment or at the time of action alleged to violate this Act, does not have a job, is available for work and is searching for work.” (the lawyer in me wonders what burden, if any, Plaintiffs will have to establish “searching for work”).

Prohibited Acts
  1. No ads indicating that unemployed applicants are disqualified or that the employer will not consider them.
  2. Employers shall not “fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of the individual's status as unemployed”
  3. No delegating the unemployment status discrimination to an employment agency.
There are similar prohibitions applicable to employment agencies. The proposed legislation also includes interference/retaliation provisions.

Enforcement
The EEOC is tasked with enforcement, and has the same powers as those delegated under Title VII. Federal courts have jurisdiction to hear claims, and the procedures and remedies essentially mirror Title VII.

Federal and State Immunity
The Act claims to abrogate state immunity, and allows recovery against states and the United States as though they were non-governmental entities.

Effective Date
“This Act shall take effect on the date of enactment of this Act and shall not apply to conduct occurring before the effective date.”

Conclusion
In short, this legislation effectively adds “unemployment status” as a protected class. The procedures, enforcement, and remedies mirror Title VII. The proposed law also prohibits job advertisements that suggest the unemployed are disqualified from consideration.

Ultimately, I agree with Ross Runkel, "it seems unlikely to have enough political support to get enacted by Congress."

Image: Official White House Photo by Pete Souza (President Obama is actually on the phone with Governor Perry, which I find amusing).

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, September 14, 2011

Now Available: NLRB Posters

Get 'em while they're hot folks. Remember the new NLRB posting requirement? As of November 14, 2011, covered (read "almost all") employers must post a notice advising employees of their rights under the NLRA. Now, the NLRB has provided three ways to get your hands on the official posters:
Enjoy!

Image: NLRB logo used in discussion of the agency and labor relations issues. NOT 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.

Tuesday, September 13, 2011

Lawffice Space Named LexisNexis Top 25 Labor and Employment Law Blog for 2011

Earlier today, I received word that LexisNexis selected Lawffice Space as one of the Top 25 Labor and Employment Law Blogs for 2011! THANK YOU, to everyone who wrote and commented in support of this blog. You can check out my awesome new badge over there on the right (for my email subscribers, it's the same thing that's embedded in this post).

I received a notification email describing the honor:
The Top 25 group includes some of the best talent in the blogosphere and creates an invaluable content aggregate for all segments of the Labor & Employment Law practice. Most good blogs provide frequent posts on timely topics, but the authors in this year’s collective take their blogs to a different level by providing insightful commentary that demonstrates how blogs can—and do—impact and influence the world of employment.
Ohhh, you're too kind!

But, wait... we're not done yet. Now that LexisNexis has narrowed the field to 25, they're out to find the number one, best of the best, greatest employment law blog of 2011. Click here to see the other honorees, and to vote for the best employment law blog of 2011.

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.

BREAKING: M.D.Pa. Rules "Obamacare" Unconstitutional

The latest opinion regarding the constitutionality of the Patient Protection and Affordable Care Act (aka the "Health Care Act," aka "Obamacare") came down today. In Goudy-Bachman v. U.S. Dept. HHS (opinion here), Judge Conner ruled that the individual mandate was unconstitutional.

I haven't been doing a very good job of covering all of the decisions. Needless to say, a number of judges have looked at this thing and reached a variety of conclusions (it is/is not a tax, the mandate does/does not exceed the bounds of the interstate commerce clause, and whether various parties have standing). I'm blogging about this opinion for two reasons:

1. It's in my "home district," the Middle District of Pennsylvania; and
2. It means there is a good shot the Third Circuit (my "home circuit") will take a swing at this thing.

And, of course, the more circuits that weigh in, the better the chance of SCOTUS settling the matter once and for all.

Judge Conner kindly provided a succinct summary at the start of the opinion:
[T]his case concerns the precise parameters of Congress’s enumerated authority under the Commerce Clause of the United States Constitution. Specifically, the issue is whether Congress can invoke its Commerce Clause power to compel individuals to buy insurance as a condition of lawful citizenship or residency. The court concludes that it cannot. The power to regulate interstate commerce does not subsume the power to dictate a lifetime financial commitment to health insurance coverage. Without judicially enforceable limits, the constitutional blessing of the minimum coverage provision . . . would effectively sanction Congress’s exercise of police power under the auspices of the Commerce Clause, jeopardizing the integrity of our dual sovereignty structure.
Obviously, this matter is far from over...

Photo: I took that photograph of the Lackawanna County (state) Courthouse with the Middle District of Pennsylvania Courthouse Headquarters (federal) in the background. Perfect picture for this case - deciding the limits of federal power - don't you think?


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, September 11, 2011

Obama's American Jobs Act to Prohibit Discrimination Against the Unemployed

Earlier this year, Congressman Hank Johnson introduced legislation that would make it illegal to refuse to hire someone because of his or her unemployment status. It was referred to committee, but there hasn't been much action lately. Enter President Obama.

Last week, he made a televised speech to Congress touting his "American Jobs Act" plan to put Americans back to work. The White House issued an American Jobs Act Fact Sheet. Among the tax cuts, building projects, and tax credits, President Obama included the following:
Prohibiting Employers from Discriminating Against Unemployed Workers: The President’s plan calls for legislation that would make it unlawful to refuse to hire applicants solely because they are unemployed or to include in a job posting a provision that unemployed persons will not be considered.
Whether Congress will pass the President's jobs act, and whether the final version will include a prohibition on unemployment status discrimination, has yet to be seen. I'll definitely keep an eye on it.

Sidenote: There's a lot of stuff about Unemployment Compensation/Unemployment Insurance reform in the President's plan too...

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, September 8, 2011

Employer Can't Moot FLSA Claim by "Picking Off" Lead Plaintiff - COTW #57

In Symczyk v. Genesis Healthcare Corp., 2011 WL 3835404 (3d Cir. Aug. 31, 2011), the Third Circuit addressed tension between two established legal principles arising in collective FLSA claims. The result is a tough ruling for employers. Let's start with the two established principles:

1. Under the Fair Labor Standards Act (FLSA), an employee may initiate a "collective action" on "behalf of himself . . . and other employees similarly situated." It starts with a lead plaintiff and then other employees can opt in.

2. Under Federal Rule of Civil Procedure 68, a defendant may make an offer of judgment. When that offer "encompass[es]  all the relief a plaintiff could potentially recover at trial," then "the case becomes moot and the court no longer has . . . jurisdiction."

So, what's the "tension?" Well, an employer can tender an offer to the lead plaintiff for full relief, thereby mooting his claim. If no other plaintiffs have opted in yet, then the employer has essentially ducked a collective action by just "picking off" the lead plaintiff. An employer can make a collective action go away (at least temporarily) for the cost of one plaintiff.

In Symczyk, the Third Circuit took that tool out of the employers' arsenal. Instead of dismissing the whole claim as moot, the Court held that new plaintiffs may opt in and their claims would "relate back" to the lead plaintiff's complaint. In practice, the district court should permit the case "to move forward as a collective action" and if "at least one other similarly situated employee opts in, then defendants' Rule 68 offer of judgment would no longer fully satisfy the claims of everyone." Therefore the complaint should no longer be dismissed.

For additional coverage check out my Think Before You Click: Strategies for Managing Social Media in the Workplace co-author, Molly DiBianca's post: 3d Cir. Agrees with "Terrible" FLSA Decision.

HT: The Legal Intelligencer, Employer Can't Short-Circuit Suit by 'Picking Off' Lead Plaintiff.

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, September 6, 2011

Judge Issues NLRA Facebook Decision

Phew, keeping up with NLRA social media developments could be its own full-time job. This afternoon, the NLRB issued a press release announcing the "first case involving Facebook to have resulted in an ALJ (Administrative Law Judge) decision following a hearing." The case is Hispanics United of Buffalo v. Ortiz, 03-CA-027872. You can read the full 14-page decision here.

This case has been floating around for awhile. In a previous post, I addressed NLRA-protected social media conduct. In short, I wrote that protected activity: 1. addresses working conditions; and 2. involves other employees. With that in mind, here's the actual Facebook thread from Hispanics United of Buffalo (HUB):

[Note: This thread was precipitated by Lydia Cruz-Moore frequently criticizing HUB employees' performance]
On Saturday, October 9, 2010 at 10:14 a.m., Mariana Cole-Rivera posted the following message on her Facebook page from her home:
Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?

The following employees responded by posting comments on Cole-Rivera's Facebook page:

At 10:19, Damicela Rodriguez (also known as Damicela Pedroza Natal) posted the following response:
What the f. .. Try doing my job I have 5 programs

At 10:26, Ludimar (Ludahy) Rodriguez posted:
What the Hell, we don't have a life as is, What else can we do???

At 11: 11, Yaritza (M Ntal) Campos posted:
Tell her to come do mt [my] fucking job n c if I don't do enough, this is just dum

At 11:41, Carlos Ortiz de Jesus posted:
I think we should give our paychecks to our clients so they can "pay" the rent, also we can take them to their Dr's appts, and served as translators (oh! We do that). Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in their house watching tv, and also we can go to do their grocery shop and organized the food in their house pantries ... (insert sarcasm here now)

Mariana Cole-Rivera posted again at 11:45:
Lol. I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do ..I will give her that. Clients will complain especially when they ask for services we don't provide, like washer, dryers stove and refrigerators, I'm proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human :) love ya guys

Nannette Dorrios, a member of the Board of Directors at HUB posted at 12:10:
Who is Lydia Cruz?

Yaritza Campos posted a second time at 12:11:
Luv ya too boo

Mariana Cole-Rivera at 12:12 responded to Dorrios by the following post:
She's from the dv program works at the FJC [Family Justice Center] at hub once a week.

Jessica Rivera, the Secretary to HUD Director Iglesias, posted at 1: 10 p.m.
Is it not overwhelming enough over there?

At 2:27 Lydia Cruz-Moore posted:
Marianna stop with ur lies about me. I'll b at HUB Tuesday..

Cole-Rivera responded at 2:56:
Lies? Ok. In any case Lydia, Magalie [Lomax, HUB'S Business Manager] is inviting us over to her house today after 6:00 pm and wanted to invite you but does not have your number i'll inbox you her phone number if you wish.

Carlos Ortiz posted at 10:30 p.m.
Bueno el martes llevo el pop corn [Good, Tuesday, I'll bring the popcorn].
The Employer then terminated employees who participated in the thread for "bullying and harassment."  What do you think? NLRA-protected social media conduct? The initial post sets the tone as it expressly 1. seeks input from other employees; 2. on workplace issues. And, co-workers did respond with discussion about the workplace, albeit somewhat poorly worded (i.e. "come do [my] fucking job n c if I don't do enough").

Sounds protected to me, and the ALJ agrees:
[The employees] were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management. By discharging [the Employees, the Employer] prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms.
Now, what's the remedy in this matter? The ALJ directed the Employer to reinstate the fired employees, and "make them whole" by compensating them for lost earnings, backpay, and other benefits - with interest. The decision also includes an order directing the Employer to post a notice regarding NLRA rights drafted by the ALJ and included as an appendix to the decision.

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, September 5, 2011

NLRB Social Media Memo Part III - Union YouTube Violation

Part I - NLRA-Protected Acts
Part II - Unprotected Conduct

In the recent NLRB social media memo, the NLRB provided numerous examples of employee NLRA-protected social media use, unprotected social media use, and the proper scope of employer social media policies. One case in the memo, however, sticks out as not falling into one of those categories: a union YouTube violation.

The fact pattern as described by the NLRB:
A Union business agent and three Union organizers visited the worksite of a nonunion subcontractor. The Union representatives did not identify themselves or reveal their Union affiliation. One carried a video recorder. After climbing to the roof where employees were working, the chief Union spokesman told the employees that they had to ask some questions, that they were inspecting the job, and that they had reports of illegal workers. He then asked three employees about their country of origin, their immigration status, whether they had "ID’s," when and how they were hired, how they were paid, how they paid their taxes, and whether they supplied social security numbers or the Employer assigned them numbers.
The Union agents then threatened to return and check IDs later, and handed over some tapes of the interrogations to federal and state government officials.

So far, we have some unlawful conduct but no real social media use. The NLRB notes violations of NLRA section 8(b)(1)(A) for infringing on the non-union employees protected right to work for a nonunion employer. The NLRB also noted that union threats to call authorities and have the employees deported constituted unlawful coercion.

That's great... but what about the social media!? Well, the Union agents also posted video of their interrogations to YouTube and their Local's Facebook page. Per the advisory opinion:
Any employee who viewed these postings, either through the YouTube link that expressly named the Union or through the Local's Facebook page, were subject to the same coercive message conveyed to the workers at the job site.
So, the takeaway from this (other than avoiding the stupid shenaningans of harassing nonunion workers on job sites) is that unlawful coercion can take place via social media.

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, September 4, 2011

Happy Labor Day from Lawffice Space

Just a quick note to wish all of my family, friends, and other Lawffice Space readers a happy and healthy Labor Day. As I disclosed in a previous post, I've been a little busy following a completely different kind of labor. Please enjoy spending time with family and friends at BBQs (or however you celebrate). If you want to learn more about the true "reason for the season," however, please check out this brief history of Labor Day.

Friday, September 2, 2011

3rd Circuit Weighs in on Concepcion - COTW #56

The latest Case of the Week, Litman v. Cellco Partnership, 2011 WL 3689015 (3d Cir. Aug. 24, 2011), arises from a dispute regarding Verizon's contracts for cell phone service. A number of customers attempted to file a class action lawsuit based on allegedly unlawful "administrative charges." There's only one problem... each customer's contract provided: "This Agreement doesn't permit class arbitrations" and required individual arbitration.

There's another twist though: such class arbitration waivers are "unconscionable and therefore unenforceable under New Jersey (state) law." But just one more twist: the Federal Arbitration Act(FAA) makes arbitration agreements generally enforceable save certain defenses. So, how does this interplay between the FAA and state law play out?

Well, if you've been following the Supreme Court, you may remember a case called AT&T v. Concepcion. It had a very similar setup. In Litzman, the Third Circuit described the holding in Concepcion as follows:
We understand the holding of Concepcion to be both broad and clear: a state law that seeks to impose class arbitration despite a contractual agreement for individualized arbitration is inconsistent with, and therefore preempted by, the FAA, irrespective of whether class arbitration "is desirable for unrelated reasons."
Therefore, the New Jersey stat law is preempted by the FAA and the class arbitration waiver must be enforced.

What the heck do these cell phone cases have to do with employment law? As I wrote previously, analyzing Concepcion as employment law:
[R]eplace cell phone contracts with employment contracts. Would the analysis be different? It's tough to say for certain, but I suspect employers will view this as a green light (or at least a flashing yellow) to tie employees in to arbitration agreements with class waivers. And it gives them a solid argument for enforcing those agreements.
I'll keep an eye out for such an application in the future.


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.