Tag Archives: termination

Targeting Union Employees For Layoffs Violates The First Amendment

The Second Circuit Court of Appeals brings an interesting labor decision.  In State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), the court found that targeting Union employees for layoffs violates the First Amendment (freedom of association).

In this case, the employer employed around 50,000 people.  75% of these employees were members of the Union, and 25% were not.  In December 2002, the employer fired only Union employees.  No non-Union employees were fired.

It is important to note that an employer can manage the size of their work force.  However, the employer cannot target a protected group (here, employees who associated themselves with the Union).  The reason for this is because by targeting a protected group, the effect is to inhibit employees from their freedom to associate.

Under the Constitution, in order for the employer to not violate the Constitution it must show that they used the less restrictive means to accomplish their interest and must be narrowly tailored to achieve their goals.

The following are the pivotal facts of this case.  The employer’s interest was to manage their economical situation.  However, the laying off those Union employees had a minimal effect on their budget.  In fact, these Union-only lay offs were not included in the Balanced Budget Plan.  Further, the facts showed that because both Union and non-Union employees had the same health care and pension benefits there was no reason why only the Union employees were targeted.

via Adjunct Law Prof Blog: Targeting Union Employees For Layoffs Violates The First Amendment.

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Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination

The E.E.O.C. (Equal Employment Opportunity Commission) issued a press release about an important decision coming from the Fifth Circuit Court of Appeals.

In this decision, the court held that the company unlawfully discriminated against a female employee when they fired her.  In this case, the female employee was lactating or expressing milk.  The female employee asked her employer if she would be able to pump breast milk at work.  The company then fired the employee.

The court relied on the Title VII of Civil Rights Act, which was amended by the Pregnancy Discrimination Act of 1987.  The Pregnancy Discrimination Act provided that a company could not discriminate against a female worker on the basis of pregnancy, childbirth, or a related medical condition.

The Fifth Circuit Court of Appeals dismissed the argument that “pregnancy-related conditions” ended on the day the mother gave birth.  In its decision, the court explained that lactation was a physiological condition distinct to women who have undergone a pregnancy.  In other words, women, not men, lactate or express milk.  Therefore, a company discriminates based on sex when it fires a woman for lactating.

via Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination.

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NLRB Clarifies Social Media Case Analysis

I mentioned this case before in a prior post.  Nevertheless, it warrants a follow up post dealing specifically with this case: Hispanic United of Buffalo.

In Hispanic United of Buffalo,the NLRB clarified the analysis for Facebook and other social media cases.

The facts are fairly typical for the increasing number of Facebook cases.  One employee had been complaining about the performance of co-workers and informed one of them that she was going to report her criticisms to the boss.  The co-worker posted a message on her Facebook page noting the criticism, saying she had “about had it,” and asking her fellow co-workers how they felt.  Four of them posted a defense of their work on the Facebook page, all while off-duty and on their own computers.  The employer fired all five for bullying the critical employee on Facebook.

All three Board members (Block, Griffin, and Hayes) agreed that the usual analysis for Section 8(a)(1) terminations–Meyers Industries–is applicable.  There wasn’t much discussion on this point, which is not surprising, as there is really nothing special about using social media other than it’s newer and cooler than more traditional forms of communication.  This essentially confirms what the General Counsel and many commentators (including yours truly) has been saying for a while, but it’s obviously a lot more helpful for the Board to make that clear.

via Workplace Prof Blog: NLRB Clarifies Social Media Case Analysis.

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NLRB recent decisions

This is the list of the most recent and significant decisions decided by the NLRB:

Hispanics United of BuffaloThe Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co. Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.

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Severance Payments Held to be Exempt From FICA Taxes; Creates Split in the Circuits

In a recent case, United States v. Quality Stores, the Sixth Circuit ruled that certain severance payments paid to involuntarily terminated employees pursuant to an employer’s reduction in workforce are not “wages” for FICA tax purposes. This decision creates a conflict in the circuits, as the Federal Circuit, in CSX Corp. v. United States, 518 F.3d 1328, 1344 Fed. Cir. 2008, previously held in favor of the government’s position that such payments are “wages” subject to FICA taxes. The government is likely to request a rehearing or petition for certiorari to the Supreme Court.

The payments at issue were “supplemental unemployment compensation benefits” SUB payments, which are defined in the Internal Revenue Code as payments that are i paid to an employee, ii paid pursuant to an employer plan, iii paid as the result of an employee’s involuntary separation from employment, iv paid as the result of a reduction in force, the discontinuance of a plant or operation, or other similar conditions, and v includible in the employee’s gross income. For income tax withholding purposes, SUB payments are not treated as “wages,” but nevertheless are made subject to income tax withholding. However, for FICA tax purposes, the Internal Revenue Code does not explicitly address whether SUB payments are “wages” or are otherwise subject to FICA taxes.

Although employers outside the Sixth Circuit should continue to withhold FICA taxes from similar SUB payments, they may be advised to consider filing protective claims for refunds of the FICA taxes withheld to preserve the statute of limitations.

via Labor Employment Law Blog: Severance Payments Held to be Exempt From FICA Taxes; Creates Split in the Circuits.

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NLRB Issues First Facebook Decision

Karl Knauz Motors, 358 NLRB No. 164 (Sept. 28, 2012), is going to be a lead case in the area of social media simply because it is the first actual decision from the Board. Click here to download  Knauz BMW The Board issued a press release describing the decision. The decision was divided along party lines.

Basically, the Board held that a Facebook posting that caused an employee’s discharge was not unlawful under the NLRA. Another interesting aspect of the case is that it found that a courtsey rule was unlawful as overbroad because it might chill Section 7 activity. With respect to that issue the Board stated:

We find the “Courtesy” rule unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the Respondent— that object to their working conditions and seek the support of others in improving them. First, there is nothing in the rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule’s broad reach. See generally Costco Wholesale Corp., 358 NLRB No. 106 (2012) (finding unlawful the maintenance of a rule prohibiting statements posted electronically that “damage the Company . . . or damage any person’s reputation”).

Second, an employee reading this rule would reasonably assume that the Respondent would regard statements of protest or criticism as “disrespectful” or “injur[ious] [to] the image or reputation of the Dealership.”

With respect to the discharge, the Board found that the employee was not engaged in protected activity, the Board summarily affirmed

the ALJ who found that the employee was not discharged for protected activity. As the ALJ explained:

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. It is therefore necessary to determine whether Becker was terminated because of the Event posting, the Land Rover posting, or for both.

via Adjunct Law Prof Blog: NLRB Issues First Facebook Decision.

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