Folks, it’s been a real crappy 2016 for Chipotle.
Remember last month when I told you
to short crude oil futures and bet the Broncos to win the Super Bowl about how the National Labor Relations Board concluded that an employer could not maintain a workplace rule that banned employees from recording workplace conversations, absent prior company approval. (More on that here).
Well, in the Commonwealth of Pennsylvania, before you get any bright ideas about secretly recording your boss, you’d better think twice.
Back when the Lamborghini Countach poster was in your bedroom, spinach and artichoke dip was on the menu, and it was hip to be square, this image would have been fitting for this blog — what’s a blog?!?! — post.
Yes, there was a time when a secret recording in the workplace implied an expectation of privacy in whatever conversation was recorded. But, now, everyone has a smartphone and, with a few quick thumb taps, an easy way to audio or video record anything and everything.
So, who among us has a reasonable expectation of privacy at work?
According to the National Labor Relations Board, practically no one who works for the company.
Remember the Employee Free Choice Act? Back in 2009, the Employee Free Choice Act, also known as “card check,” was introduced in both the Senate and House. The bill had three components:
- Requiring that an employer recognize a union if over half of the employees in the proposed bargaining unit signed union authorization cards (as opposed to voting for a union through a secret-ballot process);
- Expedited contract negotiations; and
- Harsher fines for unfair labor practices
Earlier this year, I shared the most unique late-to-work excuses. “I have a bad habit of eating breakfast in the morning, and I lost track of time” did not make the list. However, according to the Associated Press, a New Jersey teacher used that excuse to explain away the 111 times he was late to work.
In a decision issued last week (here), the National Labor Relations Board ruled that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7 [of the National Labor Relations Act].” So, for example, if you fire someone for filing a Fair Labor Standards Act lawsuit on behalf of himself and other similarly situated employees, then you’ve violated both the FLSA and the NLRA.
Yes, if an employer actually retaliates in that manner, shame on the company. However, two things pique my interest here:
- An administrative law judge concluded that the employee was fired because he filed a FLSA collective action. By this time, in the federal court action, the parties had barely scratched the surface on taking discovery and the federal court had yet to certify a class. (Ultimately, the FLSA action was settled amicably in federal court, without any finding of liability).
An employee was caught on video saying to black employees, “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon.” The company had a strict anti-harassment policy. So, after learning about the comments, the company fired the employee.
So, what would compel an Administrative Law Judge to require that the company reinstate him? Continue reading
[WARNING: This post has some VERY foul language. Although the National Labor Relations Board may tolerate it, many of you may be offended].
By now, all of us have read the articles, which claim that the law permits your employees to complain about work on social media … and keep their jobs.
Well, that’s not exactly true. The National Labor Relations Act, which applies to most private-sector workplaces — both union and non-union — protects employees who engage in protected concerted activity. Protected concerted activity is where employees discuss working conditions with one another.
But, an employee who gripes alone is not protected. Also, vulgar and obscene comments are not protected.
Until now. Continue reading
A few years ago, I posed the question: Is a workplace “English-only” rule legal?
Yadda, yadda, yadda, sometimes.
That is, in this Compliance Manual, the EEOC confirms that employers may adopt English-only rules under certain circumstances, insofar as it is adopted for nondiscriminatory reasons (e.g., safety, business necessity) and not to discriminate on the basis of national origin. Continue reading