Employment and Labor Insider - Legalese Is Not Spoken Here

Fellow blogger Jon Hyman, among others, has already written an eloquent critique of the latest report from the Office of the General Counsel of the National Labor Relations Board on social media and protected concerted activity, and Dan Schwartz has a good roundup of what labor lawyers are saying about it (and also a call for employers not to overreact). If you haven't read Jon and Dan, you ought to do so.

I was interviewed by LXBN TV recently about this topic, but today I'd like to expand on it a bit with the help of my law partner and labor "gladiator," Cliff Nelson. To hear Cliff tell it, he is a low-tech kind of guy. Maybe because of this, he had a fresh insight into the NLRB's social media policy that I haven't heard anywhere else.

Cliff notes (hahaha - get it?) that an overbroad no-solicitation policy can result in setting aside a union election, and he says that the same could be true where an employer has an overbroad social media policy. So, even if you agree with Dan Schwartz that generally it's premature to rush out to rewrite your social media policy, you might want to do it post haste if you think your company is vulnerable to a union campaign -- especially with the new "streamlined" election procedures, which don't give employers much time to get ready.

"In any event," Cliff says, "amending the policy once an 'R' case [election] petition had been filed would not insulate the policy from being objectionable and from being ground for overturning a company victory."

He adds, "Of course, it may take some of the unions a bit of time to wake up to this fact, but employers would be taking an unnecessary risk nonetheless."  

Accentuate the Positive

The NLRB report said that almost every social media policy under consideration was overbroad. However, two policies survived the General Counsel's scrutiny*, and they bear some examination: (1) it was ok for an employer's social media policy to prohibit discriminatory or harassing comments based on race, sex, and other "EEO-protected" characteristics; and (2) it was ok for a pharmacy chain's social media policy to prohibit communication of the employer's confidential and proprietary information, client or employee protected health information, or information that had been "embargoed" by corporate (in other words, scheduled for public release but not until a later date).

I will go out on a limb and posit two principles based on the above:

(1) If a communication would violate a law (or cause the employer to be in violation of the law) or a specific legitimate employer interest, the employer can probably prohibit it.

(2) If the policy provides specific guidance, preferably with examples, about what types of communications are prohibited, it is more likely to be upheld because the specificity would make it that much less likely to have a "chilling effect" on all protected communication. This is in contrast to policies that simply ban "inappropriate" use of social media, or "disparaging" comments.

One other reason not to panic about this: As long as you haven't fired an employee for violating your social media policy, or taken some other action that results in a monetary loss (like a demotion or suspension without pay), the legal remedy for your "unlawful" policy is to replace it with a lawful one and to post an NLRB notice in the workplace saying you did wrong and won't do it again. In other words, not the end of the world.

That is, unless your policy invalidates your union election victory and requires you to go through all that mess again. Sigh.

Terminations and Other Adverse Actions 

When the first General Counsel report on social media came out last summer, I provided some bullets on the terminations that were considered legal and illegal. Recall that "protected concerted activity" (affectionately known as "PCA" for short) can exist even if the employer is non-union. For those of you used to the "EEO" world, a protected concerted activity claim is essentially a type of "retaliation" claim. As you read the outcomes of the latest social media/termination charges, keep these two points in mind:

The activity has to be "concerted," meaning that the employee must be part of a group or acting on behalf of a group, or preparing for group action.

The subject matter of the "concerted" activity must pertain to terms and conditions of employment.

A summary of the terminations discussed in the January General Counsel report appears after the jump:

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Ah, February! The month of love! Of course, if you're a lawyer, you see the worst of humanity and never get to hear about true, faithful, honorable, self-sacrificial love -- sexual harassment is as close to "love" as we ever get. (See, you thought lawyers were just jerks - now you feel sorry for us!)

So, in honor of St. Valentine's Day, this is the best I can do. Here are two recent sexual harassment cases, each with a moral for employers. That's two cases, and two morals.

Hey! Did you know that 2 is almost 3, and that 3 squared = 9? And three 9s = 9-9-9? I miss Herman Cain!

Here comes Doctor Love! In the first case, the plaintiff, a nurse, had an affair with a married doctor. She admitted that, while the affair was going on, she told everyone in the world about it, and she and the doctor had some "encounters" in the workplace. He promised that he was going to leave his wife, but finally admitted that he'd been lying about that, so the plaintiff told him to hit the road. (Or, did she?)

The plaintiff now told everyone in the world that the relationship  was over, but her beloved doctor, holding fast to the hope that he could continue to have his cake and eat it, too, kept sending her romantic text messages and trying to touch her. As the court tactfully put it, "As a result, she sometimes avoided him at the office." (Emphasis added.) She apparently had an opportunity to transfer to another department away from him but turned it down.

Finally, the plaintiff sent a letter to her employer saying she wanted to continue working with "Doctor Love" but only in a professional way. She said that she wanted to be treated "as any other employee . . . no better and no worse."

The employer brought in an attorney to investigate her allegations of "sexual harassment," and then offered her two choices: quit, or be fired for disruptive behavior and having sex on the employer's premises.

The nurse chose to be fired (the doctor was fired, too), and she brought a number of claims against the employer, including sexual harassment, sex discrimination, and retaliation. The court granted summary judgment to the employer, saying that the doctor's post-breakup text messages were not objectively harassing even though they might have been annoying and "distressing." (The decision quotes the messages, and they really do seem fairly tame in the context of a breakup.) There was no retaliation, the court said, because a "plan" to get rid of her was not an adverse employment action. She lost on her other claims because she didn't even address them in her response.

MORAL: I actually have two morals from this case: a moral for women, and a moral for men. (Roles may be changed as appropriate.)

Ladies, if you get mixed up with a married man who lies to you about getting a divorce, call him a cad and dump him, but don't accuse him of sexual harassment if he didn't sexually harass you. And by no means sue your employer, an innocent bystander, for the consequences of your folly. If you don't care about doing the right thing, care about the fact that you will lose your case because all of your co-workers, who know you were having a consensual affair, will testify against you. Better to shake the dust from your feet and move on. Remember how happy Kirstie Alley was after she forgot about that rotten George Segal and married John Travolta? Do that.

Gentlemen, I've said this before and won't ever stop: 99.9 percent* of sexual harassment lawsuits result from a failed extramarital affair. Like our "Doctor Love," by having an affair at work you may make yourself vulnerable to a lawsuit, lose your job, and have to drop out of the presidential race (or at least have a severe gender gap in support for your candidacy). You will also have some explaining to do at home. Always remember that "a relationship is like a porcelain nail. If it breaks, you can put it back together again but it will never be the same unless you make a commitment and don't sleep with nurses!"

*Completely made-up statistic, but true nonetheless.

Even an exotic dancer has the right to say no. In our second case, the plaintiff worked at a convenience store and was aggressively pursued by her store manager. When she declined his advances, he cut back on her work hours, allegedly "forcing" her to get a second job as a part-time exotic dancer. His advances and retaliatory behavior escalated, her complaints to higher management were ignored, and she was finally fired for taking money out of the cash register (she said she was only making change) and closing the store for 10-15 minutes (she said it was necessary for safety reasons).

After she sued the employer for sexual harassment, the employer tried to argue that her boss's bad behavior was based on her "exotic dancer" job, not sexual harassment. Nice try, said the court. First, there was evidence that the behavior began before she got the job as an exotic dancer. (Remember she said she took the dancing job because he cut back her work hours at the store after she rejected his advances.) Second, his behavior was clearly based on her sex, whether it started after or before she she became a dancer.

However, the defendant did get summary judgment on her state-law tort claims because, under Maryland law, sexual harassment is not in the course and scope of employment. (In many states, these claims would also have been allowed to go to trial.)

MORAL: I have two morals from this case, too.

To all sleazebags, nobody -- but nobody -- is "fair game." Don't think that somebody's part-time or past employment, style of dress, choice of significant others, or sexual past means they're "available." Even if she's slept with everyone at your office and you can definitively prove it (doubtful, but just for the sake of argument), she still has the right to say no to you. If she says no, let it go, and treat her the same way you would treat any employee that you aren't trying to hit on.

To employers, even employees with a "history" can have valid complaints of sexual harassment. Don't ignore or minimize harassment complaints for any reason, including but not limited to any of the reasons listed in the preceding paragraph. Take all allegations of harassment seriously, respond to them promptly, investigate them thoroughly, and take the action that is appropriate under the circumstances.

Now go out and buy your true love some flowers (from a florist, not the supermarket), and have a happy Valentine's Day!

Last week, my post was about retaliation, and how employers can be liable and how they can defend themselves. As luck would have it, two recent court decisions illustrate beyond my wildest imagination how important this issue can be.

Five years between protected activity and adverse action? No problem! I said last week that most courts find that a six-month or more time lapse between the protected activity and the adverse employment action generally raises a presumption that the employer did not retaliate against the employee.

They key word here is "presumption." As in, "rebuttable presumption."

In a decision handed down by the U.S. Court of Appeals for the First Circuit last week, the court affirmed a $2MM verdict for a Puerto Rican physician whose contract was terminated five years after his protected activity. The doctor had sued the defendants for age discrimination in 1998, but I no tell that. As those of you who have defended lawsuits know, the wheels of justice sometimes turn at an excruciating pace. In this doctor's case, his lawsuit was still going on as of 2004, and he had been deposed just the day before his termination. He alleged that he was terminated because of his 1998 lawsuit, and because of the deposition.

OK, excuse the legalese, but we certainly have "temporal proximity" as far as the 2004 deposition is concerned, don't we? Only problem is, the court found that the decision to terminate had already been made before the deposition and had been pre-planned for the day on which it occurred only because the firer had an intervening vacation. As I said last week, if you can prove you made the decision before the protected activity occurred, you usually have a good defense to a retaliation claim.

So the First Circuit found in the employer's favor on this point.

But the court found that there was enough evidence for a jury to find retaliation based on the initial filing of the lawsuit in 1998 because of "a mosaic" of conduct that had occurred in the interim:

*One person allegedly said to the doctor before his 1998 lawsuit was filed that he would never work again for the hospital or anywhere else in Puerto Rico if he filed a lawsuit. According to the plaintiff, this statement was made by one of the people who decided to terminate him. The defendants said it was someone else. The jury obviously believed the doctor.

*The employer's grounds for terminating the doctor's contract in 2004 looked a little fishy. To make a long story slightly less long, the doctor had wanted to install some equipment in his office that would allow him to perform procedures that the hospital also performed. The hospital told him that he could do it as long as his office was at a certain location. The doctor moved to the specified location, installed the equipment, and began performing the procedure in his office and collecting the fees, which caused the hospital to lose a significant amount of revenue. This was the stated reason for the termination. Because the hospital had previously told the doctor that it was ok for him to perform the procedure as long as he did it in the location to which he relocated, the court found that it was reasonable for the jury to infer that this was a bogus reason for termination. Although "bogus" doesn't necessarily equate to "unlawful," the jury is entitled to find that a bogus reason is what we call a "pretext" ("ruse") for an unlawful reason.

*The doctor also said that he had an exemplary record. (Of course he did!) Generally, an employee's opinion about his own performance is not enough to establish that he was meeting the employer's expectations, but apparently the defendants in this case had no evidence to the contrary.

Interestingly, the court did not appear to base its decision on the fact that the 1998 lawsuit was still pending at the time the termination decision was made. If I had been on the panel, and if I had been inclined to find for the doctor (I'm not sure I would have, but anyway), I probably would have included this as a factor in the decision.

The court admitted that the case was a "close call." No kidding. Whether you agree with it or not, there it is. So the doctor gets to keep his $2MM.

"Go sell crazy someplace else. We're all stocked up here." In a truly bizarre interesting case from California, a federal judge issued a preliminary injunction, barring* a company from terminating a contract with its customer in alleged retaliation for a wage and hour class action filed by the company's employees.

*I exaggerate a bit. The judge said that the company could terminate its contract if it offered suitable alternate employment to the employees. It appears that the judge did this to avoid issuing a "mandatory injunction" (an injunction that requires you to take an action rather than refrain from taking action), which is usually a no-no.

Generally, a business closing, layoff, reduction in force, or job elimination is a legitimate, non-retaliatory reason for terminating an employee. The reasoning goes like this: No matter how angry this employer might have been at Joe for filing that EEOC charge, it is very doubtful that the employer would be vindictive (or self-defeating) enough to close the entire plant over it.

Of course, that rationale may not apply where the charge or lawsuit is a "class" proceeding involving all, or nearly all, of the employees.

And, in this case, the judge cited plenty of evidence that the company had a retaliatory motive.

So, kiddies, the moral of the story is to be very, very careful about actually or even giving the appearance of retaliating against your employees. If you have an employee who has filed a charge or lawsuit against you, or who has engaged in other protected activity (which can include informal, internal complaints), make sure you get some good legal advice before you act.

A couple of clarifications. Having looked back at what I said in last week's post, I'd like to clarify a couple of points:

1) CAUTION: LEGALESE ALERT. The standard that I used for establishing a retaliation claim (protected activity, adverse action, and causal connection) is the standard that applies under the federal anti-discrimination laws, which have been adopted in a number of other contexts.

But I should have mentioned that the standard is different for retaliation claims under the Sarbanes-Oxley Act and other statutes enforced by the Occupational Safety and Health Administration. For those claims, the employee must show by a preponderance of the evidence that the protected activity was a "contributing factor" in the adverse action. If the employee does this, he or she wins unless the employer can provide "clear and convincing evidence" that it would have taken the same action even in the absence of the protected activity. This "OSHA" standard (which is generally considered tougher for the employer) has also been adopted in a number of other contexts, as well, so check your jurisdiction. END OF LEGALESE. HAVE A NICE DAY.

2) I also should have mentioned that an employer can be liable for retaliation that occurs after the employment relationship has ended. For example, if a terminated employee files an EEOC charge and because of that the employer contests the ex-employee's claim for unemployment or gives the ex-employee a bad reference, the ex-employee can have a retaliation claim against the ex-employer.