1st amendment protects Elon Musk's tweet

NLRB: Elon Musk's tweet was coercive, and must be deleted.
5th Circuit, en bank: That remedy violates the 1st amendment.

The NLRB ruled that a tweet by Elon Musk was a threat to rescind stock options if employees unionized. As a remedy, the Board ordered that the tweet be deleted.

In a 9-8 en banc decision, the 5th Circuit refused to enforce the Board's order.

Tesla v. NLRB (5th Cir 10/25/2024) [PDF]

An opinion signed by 8 judges (a "plurality") ruled that ordering deletion of the tweet would violate the 1st amendment. They said, "Deleting the speech of private citizens on topics of public concern is not a remedy traditionally countenanced by American law."

They said they didn't need to reach the issue of whether the tweet was an unfair labor practice.

One judge concurred in the judgment only.

Eight dissenters said, "there is no First Amendment issue posed by the deletion remedy because, contrary to the plurality’s naked assertion, Musk’s coercive tweet was not “constitutionally protected speech.”

Three constitutional attacks on the NLRB

Employers are going after the NRB on three different grounds.
[Watch the video]

First, the NRB Members can only be removed for cause. The argument is that this violates the separation of powers.

Second, the ALJ is the same thing.

Third, certain remedies that the General Counsel wants maybe have to have a jury trial.

So the NLRB members can't be fired at will by the President. And there's a 2022 Supreme Court case involving the Securities Exchange Commission. The Court held that the President can remove them at will. Now the question is whether the NLRB exercises executive powers. Well, certainly, when the General Counsel wants to go to district court to get an junction, she has to get the Board's approval and that is clearly an executive power.

When it comes to the ALJs, they're doubly removed because they're entitled to a hearing in front of the Merit System Protection Board, and those folks can't be removed by the President except for malfeasance.

And finally, the General Counsel is coming up with new remedies. For example, an employee who's illegally discharged gets reinstated with back pay and that's fine. Then she wants things like, well, maybe that employee had to pay their own doctor fees or they got behind on the mortgage, and she wants those to be remedied. Well, that's starting to sound more like a legal remedy rather than an equitable remedy which brings in to play the 7th Amendment which requires a jury trial, which of course the NLRB cannot do.

Predicting a unanimous US Supreme Court decision

I rarely predict that the US Supreme Court will decide a case unanimously. I'm doing so now.

On October 4, 2024, the Court granted certiorari in Ames v. Ohio Dep’t of Youth Servs. [Briefs]

Marlean Ames is a heterosexual woman who alleged that her employer—the Ohio Department of Youth Services—discriminated against her because of her sexual orientation in violation of Title VII. The 6th Circuit upheld summary judgment in favor of the Department. [Opinion here]

Ames interviewed to be the Department’s Bureau Chief of Quality, but she didn't get it. Four days later, the assistant director and the HR administrator terminated her from her existing position and demoted her. The Department then selected a gay man for Ames' former position and selected a gay woman as its Bureau Chief of Quality.

The 6th Circuit said it was easy for Ames to make out a prima facie case.

Just one problem – In order for a heterosexual to prevail she must also show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Typically this is done by showing either (1) that the decisionmaker was gay or (2) that there was a pattern of discrimination against heterosexuals.

First, Ames was terminated from her previous position by two individuals who are both heterosexual.

Second, Ames’s only evidence of a pattern of discrimination against heterosexuals is her own demotion and the denial of the Bureau Chief position.

This decision is plainly wrong.

(1) Adding the "background circumstances" requirement has no basis in Title VII's text. That's the sort of thing the Supreme Court tends to be quite unhappy about.

(2) Requiring "background circumstances" for heterosexuals does exactly what Title VII forbids—treats some individuals worse than others.

Therefore, I predict a unanimous reversal.

Employment law pop quiz #17 – NLRB & the constitution

Is the NLRB unconstitutional?

So far, no court has said so. But storm clouds are forming courtesy of Amazon, SpaceX, Starbucks, and Trader Joe’s.

A prime target for the naysayers is the fact that NLRB Members can be removed by the President only "upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause."

The argument is simple: NLRB Members must serve at the will of the President, period. So the President can remove them for any reason or no reason.

This argument gets some support from the US Supreme Court case of Seila Law v. Consumer Financial Protection Bureau, 591 US 197 (2020) [PDF].

In the Seila case the CFPB was headed up by a single director who wielded a lot of executive powers. He was removable by the President only for “inefficiency, neglect of duty, or malfeasance in office.”

The Court held that violated the constitution's separation of powers.

As a remedy, the Court did not trash the entire agency. It simply severed the director’s removal protection from the other provisions of the statute. It seems that would be the worst case scenario for the NLRB.

Does the NLRB really exercise executive powers? They are what the Court has labelled “quasi-legislative” and “quasi-judicial" functions. Yet they do exercise one important executive power. The General Counsel cannot sue for an injunction in federal district court without the Board’s approval.

The NLRB's General Counsel exercises executive functions, and is removable at the President's will.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Get all the Pop Quizzes (17 so far) in one PDF – email me: RossRunkel@gmail.com.

Employment law pop quiz #16 – Federal overtime

Does federal law require overtime payments for more than 8 hours in one day?

No.

Federal law – the Fair Labor Standards Act – requires overtime payments (1.5 times the regular rate) for hours that are more than 40 in one week.

Federal law does NOT require overtime payments for more than 8 hours in one day.

Many state statutes do require overtime payments calculated on a daily basis, so you need to check you local laws.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Get all the Pop Quizzes (16 so far) in one PDF: email me: RossRunkel@gmail.com .

Employment law pop quiz #15 – Temporary back pain

Is this an ADA disability? – Temporary back pain, with chiropractor's limitations on lifting and bending.

[Morgan v. Allison Crane (3rd Cir 09/04/2024) [PDF] prompted me to ask this.]

First, don't be fooled by "temporary." Years ago the US Supreme Court held that an impairment must be “permanent or long term” in order to qualify. But Congress changed that in the ADA Amendments Act (ADAA) in 2008. "Temporary" is no longer a show-stopper.

Congress mandated that the “definition of disability . . . shall be construed in favor of broad coverage of individuals” and “to the maximum extent permitted.” In response, the EEOC explained that even an impairment that is expected to last less than six months can constitute an actual disability “if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.”

Second, consider what major life activities are involved. In our example, we have lifting and bending. An EEOC regulation specifically lists lifting and bending as major life activities.

Third, ponder "substantially limits." EEOC regulations say an impairment "need not prevent, or significantly or severely restrict” to be substantially limiting. They also say “substantially limits” should be “construed broadly in favor of expansive coverage.”

Fourth, the employee in the case cited above testified that “it hurt to sit, hurt to walk,” and it hurt to “turn[] left or right.” That was enough to prevent the employer from getting a summary judgment, but the ultimate winner will be decided by a jury.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #14 – NLRB & Amazon

Has the NLRB ruled that Amazon is a joint employer of subcontracted delivery drivers?

No, even though recent click-bait headlines are saying this.

The NLRB itself has not made such a ruling.

An NLRB Regional Director in California has made a "merit determination" which is an early step in a process that could put the issue in front of the NLRB itself.

Amazon does not directly employ drivers who deliver packages. Amazon has contracts with companies it calls Delivery Service Partners – DSPs. These DSPs employ the drivers. There are over 3,000 DSPs employing some 275,000 drivers.

The Teamsters Union was able to unionize employees at one of the DSPs in California – Battle Tested Strategies. Teamsters wanted Amazon to negotiate a collective bargaining agreement, but Amazon refused. So Teamsters filed unfair labor practice charges.

Teamsters is arguing that Amazon is a joint employer of the Battle Tested Strategies employees. This is because Amazon exercises significant control over the drivers, such determining their routes, setting delivery targets, and monitoring their performance.

There are many steps yet to be taken – the General Counsel filing a complaint, a hearing before an administrative law judge, a hearing before the NLRB, an NLRB decision, and possible review by a US Court of Appeals.

Unless there is a change in the membership of the NLRB, I expect the Board will side with the Teamsters.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #13 – FLSA & jurisdiction

Can I opt in to a FLSA collective action without proving the court has personal jurisdiction over MY claim?

"No," according to a recent 7th Circuit decision. A court overseeing a collective action must secure personal jurisdiction over each plaintiff's claim, whether representative or opt-in, individually. Vanegas v. Signet Builders (7th Cir 08/16/2024) [PDF].

A Wisconsin resident brought a Fair Labor Standards Act collective action in federal court in Wisconsin against a Texas-based employer. He had hoped that other employees from various states outside of Wisconsin would opt in, to establish a nationwide collective action.

This will now be practically impossible. Each opt-in plaintiff has to prove that the court has personal jurisdiction over his or her claim.

The 7th Circuit relied on Bristol-Myers Squibb v. Superior Ct, 582 US 255 (2017). The only difference was that Bristol-Myers involved state court jurisdiction. But a federal district court in Wisconsin has no more extra-territorial jurisdiction than a Wisconsin state court would have.

FLSA collective actions are different from class-actions. In a class-action, the class itself is essentially the plaintiff. But FLSA collective action is no more than a "consolidation of individual cases, brought by individual plaintiffs."

One judge dissented, arguing that this outcome is not mandated by Supreme Court precedent or personal jurisdiction law.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #12

Can the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) apply to pre-enactment events?

"Yes," sometimes.

The EFAA renders arbitration agreements invalid and unenforceable, at the election of the complainant, in sexual assault and sexual harassment cases.

But it applies only to claims that "accrue" after the effective date – March 3, 2022. So the key is to identify when a cause of action accrued.

Recent case in point: A woman claimed she was subjected to a sexually hostile work environment both before and after enactment of the EFAA. The 2nd Circuit held that the EFAA applied, so she does not have to arbitrate.

The court held that her claims accrued before the effective date, and then re-accrued with each successive act that was part of the single continuing course of conduct underlying the hostile work environment claims. This is because a hostile work environment claim is subject to the continuing violation doctrine because, unlike discrete acts, their very nature involves repeated conduct.

Bonus: The court also allowed her retaliation claims to stay in court because such claims fall within the EFAA's definition of a "sexual harassment dispute."

Olivieri v. Stifel, Nicolaus & Company (2nd Cir 08/12/2024) [PDF].

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

An offensive Facebook post & the 1st amendment

The 1st amendment is still alive, even for an employee who posted a "shocking" and "highly offensive" message on his Facebook page.

The 6th Circuit recently held that a public library violated the 1st amendment when it fired a security guard for posting a meme that said “ALL LIVES SPLATTER” — obviously a crude word play on the message “All Lives Matter.” The meme ended with “NOBODY CARES ABOUT YOUR PROTEST.”

Noble v. Cincinnati & Hamilton County Public Library (6th Cir 08/09/2024) [PDF].

The security guard's Facebook page has less than 100 friends. He took down the meme less than 24 hours after it went up. But some of the friends worked at the library, and they complained.

The court applied a familiar two-step analysis:

First, he spoke as a private citizen, not pursuant to his official duties, on a matter of public concern.

Second, the employee's speech interest outweighs the library’s efficiency interest. There was no evidence that his speech significantly hindered Library operations. Nobody from the public complained about it. And some of the library's employees engaged in the same debate, although on the opposite side.

I love this line from the court: "It was not a prerequisite to be a security guard at the Library that the guard share the politics of book borrowers or librarians."

There was a dissenting opinion that would hold that the balance tipped in favor of the library because the library could reasonably predict a potential disruption given this highly charged political environment and the immediate spreading of the post that had already occurred.

Employment law pop quiz #11

Can a co-worker's single racial slur result in employer liability?

"Yes," according to yesterday's California Supreme Court decision in Bailey v. San Francisco District Attorney's Office (California 07/29/2024) [PDF].

I am unaware of any other court decision, and the California court did not cite one, that holds that a single use of the N-word by a co-worker can be severe enough to create a hostile environment for which the employer can be responsible.

An African-American employee claimed that a co-worker – on a single occasion – called her the N-word.

The court rejected a lower court's conclusion that a one-time slur from a co-worker – rather than a supervisor – cannot be actionable under California law.

To determine whether this incident was severe enough as to alter the conditions of employment and create a hostile work environment, a court must take into account the totality of the circumstance. Only one circumstance – a “significant factor” in assessing the severity of harassing conduct – is the status of the speaker.

This employee alleged that she and the co-worker shared an office and job duties. She also said that the co-worker was friends with an HR person and that the co-worker's actions against two other African-American women caused them to be reassigned or to separate from the employer.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

California drops prejudice requirement for arbitration waivers

California no longer requires a party seeking to avoid arbitration to prove they were prejudiced.

The California Supreme Court on Thursday abrogated a rule that had been followed for decades. Quach v. California Commerce Club (California 07/25/2024) [PDF]

This case was brought under the California Arbitration Act, so that statute now lines up with how the Federal Arbitration Act treats waivers.

In 2022 the US Supreme Court decided Morgan v. Sundance, Inc., which announced that prejudice is not part of waiver analysis under the Federal Arbitration Act. The California court adopted the reasoning in the Morgan case. The so-called "policy favoring arbitration” is about putting arbitration agreements on equal footing with other contracts, not about favoring arbitration with arbitration-specific preferential rules.

In the Quach case, a former employee sued his former employer, alleging various employment law claims. Then the employer waited for 13 months before moving to compel arbitration.

During those 13 months the employer actively pursued discovery, requested a jury trial, posted jury fees, left the check box for indicating it was “willing to participate” in arbitration blank, and represented that the only motion it intended to file was a “dispositive motion.” This constituted a waiver of the right to arbitrate.

Employment law pop quiz #10

Can I be fired for my Facebook posts?
Most likely, yes.

The legal landscape is littered with appellate court decisions upholding employers' right to fire employees for posting offensive material on Facebook.

First, consider whether a 1st amendment free speech issue is involved. This is easy. The 1st amendment applies only to the government (federal, state, local). So if the employer is a private company, there simply is no 1st amendment protection for the employee.

When the government is the employer, the employee might get some protection if the posting deals with "a matter of public concern." This is something more than a personal "gripe," and is pretty easy for the employee to demonstrate.

Then the court is going to go through what is called the Pickering balancing test, named after the 1968 US Supreme Court case Pickering v. Board of Education. As the Court put it, "The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

Just this week the 7th Circuit decided Hicks v. Illinois Department of Corrections [PDF], upholding the suspension of a corrections sergeant who posted Islamophobic and offensive material on Facebook. The court had no trouble showing how this was in opposition to the goals of his employer and resulted in an adverse news article.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #9

What's the most frequent charge at the EEOC?

Retaliation.
57% of all EEOC filings.

Disability - 36%
Race - 34%
Sex - 31%
Age 17%
(This adds to more than 100% because one filing can contain multiple items.)

But wait!
This needs to be put into context.
(Nerdy perhaps, yet necessary.)

Retaliation overlaps all the other categories.

Retaliation – all by itself – is not a violation of Title VII.

It must be retaliation for opposing an unlawful act.

And that unlawful act has to be tied to race, sex, age, religion, etc.

Therefore, a retaliation claim always involves race, sex, age, religion, etc.

So when you see or hear "retaliation," just ask "Retaliation because of what?"

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Employment law pop quiz #8

Is an employee's refusal to take DEI training a protected activity?

I think not. A recent 7th Circuit decision explains why. Vavra v. Honeywell (7th Cir 07/10/2024) [PDF].

Honeywell required its employees to complete online unconscious bias training. This was around 20 to 30 minutes long and entailed watching videos of different scenarios with a quiz at the end.

Charles Vavra refused. He never clicked the link to access the training. In spite of many reminders and his superiors urging him to take the training, he maintained his refusal.

Honeywell eventually fired Vavra for refusing to take the training.

Vavra sued under Title VII and the Illinois Human Rights Act claiming that firing him was in retaliation for engaging in protected conduct – opposing an action that violated the law. His point was that the training would vilify white people and treat people differently based on their race.

The court pointed out that in order to state a claim of retaliation Vavra needed to have an objectively reasonable belief that the training violated the law. However – because Vavra never took the training – he had no direct knowledge of its contents. Indeed, his supervisor told him that it was not racist and featured a white victim of unconscious bias.

So, in the end, the 7th Circuit affirmed summary judgment in favor of Honeywell because Vavra lacked an objectively reasonable belief that the training was unlawful. As the court put it, "An employee must have some knowledge of the conduct he is opposing for his belief to be objectively reasonable."

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)