In another edition of surprising National Labor Relations Board (NLRB) decisions, the NLRB ruled that a profanity-laced posting on Facebook about a manager and his family was protected, concerted activity and that the employer violated the law by discharging the employee who posted the message.
Three key factors in the board’s March 31, 2015, decision were that profanity was common on the worksite and usually went unpunished, the posting encouraged co-workers to vote for a union, and the post was just two days before a union election.
Hernan Perez, a server for Pier Sixty, a catering service company in Manhattan, N.Y., was infuriated by a manager saying loudly, “Turn your head that way and stop chitchatting,” while pointing to arriving guests. The manager also had said in a raised, harsh tone for the servers to “Spread out! Move! Move!”
Perez told Evelyn Gonzalez, who headed the employees’ organizing effort, that he was “sick and tired of this” disrespectful behavior and that he would talk to the manager. Noting that the union election was near, Gonzalez urged Perez to stay strong and take a break to calm down.
Perez took a break outside the catering company’s facility. There, he posted from his iPhone the following message on his Facebook page: “Bob is such a NASTY M—– F—– don’t know how to talk to people!!!!!! F— his mother and his entire f—— family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
Perez’s post was visible to his Facebook friends, including 10 co-workers. He deleted the post the day after the election.
Not fast enough, though. On the day before the election, a co-worker notified the HR director about Perez’s comments. The HR director viewed the post on the co-worker’s office computer and printed out a copy. Following an investigation, Perez was discharged.
Post Was Protected
But the NLRB ruled that Perez’s post was protected, concerted activity, noting that testimony showed that vulgar language is “rife” in the caterer’s workplace among managers and employees alike. “While distasteful, the respondent tolerated the widespread use of profanity in the workplace, including the words Perez used,” the board said. “Considered in this setting, Perez’s use of those words in his Facebook post would not cause him to lose the protection of the act.”
The board also noted that the harassment policy, which was cited as the basis for discharging Perez, “neither prohibits vulgar or offensive language in general, nor did the respondent allege that Perez’s Facebook comments were directed at any protected classification listed in that policy.”
Moreover, since 2005, the company had issued only five written warnings to employees who had used obscene language and there was no evidence that it had ever discharged any employee solely for the use of such language.
The board upheld an administrative law judge order calling for Perez’s reinstatement plus back pay for any lost wages.
Dissenting, board member Harry Johnson III said, “I find that Perez’s vulgar and obscene Facebook comments lost the act’s protection.”
Johnson added, “My colleagues recast an outrageous, individualized griping episode as protected activity. I cannot join in concluding that such blatantly uncivil and opprobrious behavior is within the act’s protection.”
He said that the words Perez used “are qualitatively different from the use of obscenity that the respondent appears to have tolerated in this workplace,” as they were a slur against the supervisor and his family.
The HR director had found the invective against the supervisor’s family particularly offensive, and Johnson wrote that the HR director’s reaction was “perceptive, accurate and objectively spot-on” [italics in the original].
In addition, Johnson noted that Perez’s remarks were “via Facebook to co-workers and nonemployee ‘friends,’ a broader audience than those employees and managers within earshot of the tolerated workplace profanity.” And Johnson agreed with the HR director that Perez’s profanity was “quite apart from expressing an expletive when you drop something on your foot or saying to someone, ‘What the hell are you doing?’
“Employers are entitled to expect that employees will coexist treating each other with some minimum level of common decency,” Johnson wrote. “It serves no discernible purpose for the board to stretch beyond reason to protect beyond-the-pale behavior that happens to overlap with protected activity.”
This decision is Pier Sixty LLC, 02-CA-068612 and 02-CA-070797, 362 NLRB No. 59 (2015).
By Carolyn Moran, PHR, SHRM-CP for ThinkHR
With each holiday, the ThinkHR Live Hotline receives a number of questions about paying employees for the holiday. Federal wage and hour laws do not require employers to offer payment for time not worked, or a premium for hours worked which fall on a recognized holiday. These fringe benefits are offered at the employer’s discretion and governed by the employer’s policy and past practice.
Special note: Some state wage and hour laws may have requirements for holiday pay or premiums; however, this is generally limited to certain industries, such as retail.
The following are some myths and facts regarding holiday pay:
Myth: We are required to pay a holiday premium to nonexempt employees who work on a recognized national holiday.
Fact: An employer is not required to pay time and one half when an employee works on a holiday unless company policy provides for holiday premium pay.
Myth: Holiday pay is included in hours of work for the purposes of calculating weekly overtime for nonexempt employees.
Fact: Only actual hours of work are used to determine overtime pay requirements. Employers do not have to count holiday pay toward the calculation of the overtime requirement because these hours are not actually worked and are therefore not considered as hours counted toward overtime.
Myth: Employers can deduct a full day of salary for exempt employees due to a holiday closure.
Fact: Under the wage and hour laws, exempt employees are paid on a “salary basis.” Employers may not make deductions from an exempt employee’s pay for absences caused by the employer or by the operating requirements of the business during the workweek, such as the business being closed for a holiday.
Myth: Employees who are on a protected leave (e.g. FMLA, USERRA, etc.) still need to be paid holiday pay.
Fact: There is no requirement to provide employees on any type of leave with holiday pay, so it would depend upon the company’s policies and practices. Even if leave is taken intermittently, nothing under the federal or state family and medical leave laws require an employer to continue a holiday pay benefit during an unpaid leave for either hourly nonexempt or exempt employees. For exempt employees on FMLA leave, the “salary basis” test is suspended during periods of unpaid leave.
Myth: We have to pay a nonexempt employee holiday pay even if the holiday falls on their normally scheduled day off.
Fact: Company policy and past practice will determine obligations to pay an employee who is normally scheduled off on an observed holiday. Some employers offer a different day off to those who are not normally scheduled to work on the holiday (usually the scheduled day before or after the holiday), or they include an additional “holiday” pay on the employee’s check — meaning their paycheck includes all hours worked, plus holiday pay. Neither option is required.
Establishing your pay policy for holidays and other periods where employees take time off and communicating those pay practices to all employees can help ensure that the myths regarding pay for time not worked are clarified.
By Dana Wilkie 3/23/2015
With pregnancy discrimination claims growing at a faster rate than any other protected category, it’s critical that employers know what comments and behavior to avoid when dealing with workers who are expecting, attorney Courtney Barksdale Perez said March 23 at the Society for Human Resource Management’s 2015 Employment Law & Legislative Conference in Washington, D.C.
Barksdale Perez, a senior associate at Dallas, Texas-based Carter Scholer Arnett Hamada & Mockler PLLC, said managers should wait for workers to mention their pregnancies, instead of asking the employee first.
“You don’t approach them as a manager and say, ‘So, I noticed you’re pregnant—were you planning on coming back?’ ” advised Barksdale Perez, who spoke at a concurrent session on the conference’s opening day. “Let the employee approach you. That’s your opportunity to say ‘Congratulations! Are you familiar with our pregnancy policy?’ ”
Barksdale Perez explored the best ways to avoid liability for sex, pregnancy and caregiver discrimination under Title VII of the Civil Rights Act of 1964, the Patient Protection and Affordable Care Act, the Family and Medical Leave Act, the Pregnancy Discrimination Act (PDA), and the Americans with Disabilities Act (ADA).
Barksdale Perez, who said she is pregnant with her third child, noted that pregnancy discrimination claims filed with the U.S. Equal Employment Opportunity Commission (EEOC) grew by 35 percent from 1997 to 2007.
“No other area in the EEOC has grown in the last decade as fast as pregnancy discrimination,” she said.
One of the reasons for that may be that an increasing number of women are choosing to stay on the job while pregnant, and to return to work after delivering their babies, Barksdale Perez observed.
Citing U.S. Bureau of Labor Statistics data, she said that in 1960, the labor participation rate for mothers who were the sole or primary providers for their children was 11 percent; in 2011, it was 40 percent.
“The presence of [pregnant or parenting] women in the workplace has increased and will continue to increase,” she said. “Employers are having to adapt.”
Barksdale Perez discussed key pregnancy discrimination cases, including Young v. United Parcel Service, which is pending before the U.S. Supreme Court.
Peggy Young, a UPS driver who sometimes had to lift packages weighing up to 70 pounds, became pregnant and gave her supervisor a note from her midwife recommending that she not lift more than 20 pounds during her pregnancy. Young wanted to work at her regular job or be assigned to a light-duty position, but her request was denied. She sued UPS, alleging the company violated the PDA by failing to give her the same accommodations afforded nonpregnant workers whose physical disabilities presented them with comparable constraints. An appeals court affirmed a lower court’s decision to grant summary judgment to UPS, upholding the determination not to accommodate Young’s lifting restriction. The appeals court called the company’s accommodations policy for other workers “pregnancy-blind.”
“It’s one of those cases that may expand the definition of the PDA,” Barksdale Perez said.
Her advice for employers to help reduce the risk of liability includes avoiding assumptions and stereotypes that could translate into actionable behavior. For instance, she said, catch yourself if you tend to think that pregnant workers are less reliable than others, or less focused on career and promotions. Never ask about a pregnancy during a job interview, nor about an applicant’s plans for starting a family in the future.
Also risky, she said, is making comments to a pregnant worker, no matter how well-intentioned, such as “When are you due?” or “How long are you going to take off?”
“You may just think you’re being nice,” she said. “But those are the kinds of comments that will come back later down the road and hurt you.”
Dana Wilkie is an online editor/manager for SHRM.
Employer’s Failure to Follow Progressive Discipline Policy Allows Bias Claim to Proceed
By Jeffrey L. Rhodes 3/27/2015
An employee allegedly fired for multiple acts of misconduct can proceed with his age discrimination claim where he presented evidence that the employer had a progressive discipline policy that it applied to other employees but did not apply to him, the 1st U.S. Circuit Court of Appeals ruled.
The employee, Addiel Soto-Feliciano (Soto), worked as the head chef for the Villa Cofresi Hotel on the beach of Rincón, Puerto Rico. The hotel was owned and operated by the Caro family, including Sandra Caro, the general manager and Soto’s second-level supervisor. Soto alleged that, at various times during his employment, Caro made statements concerning his age, including that he was too old to be working the cooking line and that the hotel was “moving up, not down.” The hotel, in contrast, claimed that Soto was counseled about being late to work and often became angry when preparing food, using profanity in the kitchen that could be heard by other staff and possibly even customers. The hotel further claimed that Soto had engaged in potential religious harassment, disparaging a Catholic waiter’s request to eat a meal without meat on Ash Wednesday. The employee complained about Soto, and Caro investigated the matter by speaking with Soto.
In addition to these alleged acts of misconduct, the hotel claimed that Soto refused an instruction to prepare a meal by his direct supervisor, and later threatened that same supervisor. He refused to speak to Caro when she conducted a final investigation of these and other incidents. At about the same time, Soto notified Caro that he had spoken with the Department of Labor concerning his rights and also complained to her brother, the finance manager, regarding her alleged ageist comments. Based on Soto’s alleged misconduct, the hotel issued him a written suspension describing his alleged misconduct, and then discharged him eight days later.
After his discharge, Soto brought claims of discrimination and retaliation under the Age Discrimination in Employment Act (ADEA) in federal court. During that litigation, the hotel filed a motion for summary judgment, claiming that Soto did not provide sufficient evidence of age discrimination to establish a prima facie case of discrimination and that Soto’s documented misconduct demonstrated a legitimate nondiscriminatory reason for his discharge. The court agreed and dismissed Soto’s claims based on the hotel’s summary judgment motion.
On appeal, the 1st Circuit considered the claim in light of the burden-shifting framework set forth by the U.S. Supreme Court for discrimination cases. That framework imposes a light initial burden on the plaintiff to establish only that the plaintiff is protected due to his age (over 40), that the plaintiff suffered an adverse employment action and that it occurred under circumstances supporting an inference of discrimination. The 1st Circuit found that Soto satisfied this initial burden. The burden of production then shifted to the employer to present a legitimate nondiscriminatory reason for discharge, which the hotel had satisfied with its evidence of misconduct.
The burden then returned to the plaintiff to establish pretext by showing that the reason given for termination was false and that discrimination was the real reason. Here, the 1st Circuit ruled that Soto’s evidence could show that the hotel did not fire him because of his misconduct but because of his age and his discrimination complaints. The 1st Circuit found that Soto presented evidence that the hotel had a progressive discipline policy that it applied to other employees but did not apply to him, instead taking drastic action by suspending him and then firing him. Based on this and other evidence potentially undermining the hotel’s basis for discharge, the 1st Circuit reversed the lower court, revived the claim and required it to proceed to trial.
Soto-Feliciano v. Villa Cofresi Hotels Inc., 1st Cir., No. 13-2296 (Feb. 20, 2015).
Professional Pointer: When an employee claims discrimination or harassment shortly before impending discipline, a company should carefully evaluate and investigate the employee’s claim and make sure that the impending discipline is commensurate with that administered to other employees.
By Allen Smith 4/1/2015
By now, news reports about stupid employee tweets are legion.
Take Justine Sacco’s Dec. 20, 2013, tweet before boarding a plane to Cape Town, South Africa. She tweeted, “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!”
While she was in the air, reaction to her tweet erupted from all corners, reported The New York Times. Tens of thousands of angry tweets responded to her joke, the newspaper noted, including “one from her employer, IAC, the corporate owner of The Daily Beast, OKCupid and Vimeo: ‘This is an outrageous, offensive comment. Employee in question currently unreachable on an intl flight.’ ” Sacco later was discharged.
Then there was Rayhan Qadar, who was fired by Hargreaves Lansdown after he tweeted, “Think I just hit a cyclist. But I’m late for work so had to drive off lol,” according to Investment Week.
Discharging someone for a stupid tweet isn’t always straightforward, though. Criticizing one’s boss, for example, may not be the most brilliant move, but if the tweet is worded a certain way, it may be protected concerted activity under the National Labor Relations Act (NLRA).
So what’s an employer’s next move after it becomes aware of an inappropriate tweet from an employee’s account?
Factors to Examine
Christina Stoneburner, an attorney with Fox Rothschild in Roseland, N.J., told SHRM Online that when determining whether to discipline an employee for a tweet, employers can consider several factors:
- Does the tweet disclose trade secrets or confidential proprietary business information of the employer?
- Does it reference or advocate illegal activity?
- Does it threaten physical violence against any employee of the company?
- Does it contain language that could be viewed as racist or sexist or as otherwise violating the company’s harassment policies?
- Is the tweet soliciting work for a competitor or someone other than the employer, and, if so, does that violate a restrictive covenant or conflict-of-interest policy?
- Is the tweet defamatory?
- Does the tweet disclose personal, confidential information of customers or employees, such as bank account information, Social Security numbers, attorney/client information, or health information protected by the Health Insurance Portability and Accountability Act?
“If the answer to any of these is ‘yes,’ then an employer can discipline the employee for the tweet,” Stoneburner said.
Before handing out discipline, however, employers should conduct an investigation, most experts advise.
“Employers should verify the content of the tweet rather than relying on a report from another person,” Stoneburner said. “Employers should also print out a copy of the tweet in case the person who posted it deletes it.
“If there is some doubt as to whether the employee is the person who posted the tweet or some ambiguity in the tweet that needs to be explained, then the employer should interview the person who posted it,” she continued. “In other cases, where there is no doubt the employee posted the tweet, then there may not be a need to interview the employee before proceeding with discipline.”
But Michael Schmidt, an attorney with Cozen O’Connor in New York City, said that unless there is a situation that warrants immediate, urgent action—for example, a specific, targeted threat of violence—the employer should always conduct a reasonable investigation before taking adverse action as a result of the tweet.
He also remarked that “assuming no outright prohibition [by the law] on disciplining the employee for the tweet, the employer also may consider both the impact that the tweet has or may have on co-workers, as well as the impact on morale if the offending employee or others perceive the employer as overly regulating employee speech and expression, particularly of a more innocuous and not patently offensive message.”
Erin Dougherty Foley, an attorney with Seyfarth Shaw in Chicago, said, “An employer should generally interview the employee who is alleged to have made the offensive posting” just as it would interview the individual or individuals involved as part of any investigation into employee misconduct.
“Remember, not everything you read on the Internet is true!” she noted. “Certainly, we’ve seen situations where someone left their social media platform open and someone else put up the post, or the employee explained that her teenagers were playing with the phone and made the inappropriate comment, or that someone hacked into the employee’s account, or the Martians show made me do it—trust me, we’ve heard the excuses! I always think it’s a good idea to get the employee’s side of the story before taking any type of disciplinary action.”
Protected Concerted Activity
Schmidt observed that “Certain tweets, depending on their subject matter and actual or intended audience, may be considered protected under the NLRA because they constitute protected concerted activity or may constitute protected activity under a state’s legal activities law, in which case the employer may be limited in what it can do in response to the tweet.”
Some hallmarks of protected tweets include “tweets that criticize a boss or management in general, comment on wages or benefits, or otherwise complain or comment about work-related expectations, demands or conditions,” said Sonya Rosenberg, an attorney with Neal Gerber & Eisenberg in Chicago. “These kinds of tweets can appear offensive and inappropriate to management, but, depending on what a particular tweet actually states and who follows and comments on it and how, it may or may not be protected under the NLRA.”
She added, that the line between a protected or unprotected tweet, “can be quite apparent or quite thin, depending on the circumstances. If the tweet is legally protected, then, even if offensive to management, the employer should not discipline, at least not with respect to any portion of the tweet or follow-up that would likely be deemed to be protected under the NLRA. The remainder of the tweet, however, depending on what it states, may provide legitimate and lawful grounds for appropriate disciplinary action.”
Protected concerted activity can be any discussion of terms and conditions of employment, Stoneburner noted. She explained that “a tweet that says that the employee’s boss is an idiot, unqualified and does not pay overtime when due would certainly be a tweet that may upset the supervisor and the employer, but may also be concerted activity because of the reference to overtime.
“Of course, if the tweet is patently offensive, then that language may take it outside of the protection of the NLRA,” she added.
“Employer discipline for tweets and other social media posts of an employee illustrates the fine line between protecting the right of employees to engage in protected expression and engage in lawful activity, on the one hand, and the right of employers to conduct [their] business and protect [their] employees and other legitimate business interests,” Schmidt said. “While it is imperative that employers establish and communicate social media policies for their employees, such policies should reflect that balance and avoid many of the legal pitfalls that have been litigated thus far.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.