By Christopher M. Cascino

Synopsis: On May 25, 2017, Seyfarth attorneys Chris DeGroff, Noah Finkel, and Brad Livingston presented their insights on how the Trump administration will affect employers.  Specifically, they discussed the effect the Trump administration is having and will have on the EEOC, the DOL’s Wage and Hour Division, and the NLRB.  All presenters agreed that, while the Trump administration will have an effect on these agencies, it will take time for the changes to take place.

The Presentation

Chris began the presentation by discussing the EEOC.  He observed that the new administration has not yet replaced the high-ranking EEOC officials who set EEOC policy.  He pointed out that the majority of the EEOC still consists of Democratic appointees, though observed that this will change around July 2017.  He further pointed out that the General Counsel position remains unfilled.  When that is filled, Chris thinks we should have a better idea about the direction the EEOC will head in the Trump administration.

Chris discussed the ways in which the Trump administration might affect the EEOC’s strategic enforcement priorities.  For example, Chris pointed out that the EEOC’s strategic priority of eliminating systemic barriers to hiring will likely be a focus of a Trump administration focused on job growth, while strategic priorities like eliminating pay disparities might be less of a focus to the administration.

Chris concluded by pointing out that the EEOC has shown itself to be resilient to changes in administrations.  In the past, it has been aggressive after changes from a Democratic to a Republican administration.  That trend appears to have continued, as the EEOC’s lawsuit filings are up 75% over this time last year.  Chris observed that this may be because the EEOC may be trying to justify continued funding from what could be a less friendly administration.

Noah then spoke about how the Trump administration will affect the DOL’s Wage and Hour Division.  Like Chris, Noah pointed out that Trump has not been able to fill the key DOL positions.  While the administration has put in place a Secretary of Labor, none of the three key policymaking positions in the Wage & Hour Division – the Administrator, Deputy Administrator, and Solicitor of Labor – have been filled by Trump’s administration.  In fact, the   Administrator and Deputy Administrator positions are vacant, and the current Solicitor of Labor is temporary.  Noah observed that, when the administration fills these positions, we will have a better idea about how the Wage and Hour Division will function under the Trump administration.

Noah stated that, though the DOL’s Wage and Hour Division grew under the Obama administration, there are no proposed changes to its funding in the Trump administration’s proposed budget.  As a result, like with the EEOC, while there could be a change in the focus of wage and hour investigations, the actual number of investigations will probably remain steady.

Noah pointed out that probably the biggest outstanding question is how the Trump DOL will handle the rule promulgated under the Obama administration raising the wage needed to qualify for the white collar exemption.  Currently, the rule is not in effect because a federal judge enjoined the DOL from enforcing it.  The injunction is on appeal and, to date, the Trump administration has not filed a brief on the appeal.  Noah said we should look for the Trump administration’s position on appeal to see where the law is heading on the wage needed for the white collar exemption.  For more information about Noah’s presentation, see link.

Brad  then presented on changes to expect from the NLRB.  As with the EEOC and the DOL’s Wage & Hour Division, Brad stated that change within the NLRB will take time because the Trump administration has not yet put its appointees into place.  At this point, there are two vacancies on the five member NLRB.  Its chair is a Republican appointee whose term ends this December, and its other two current members are Democratic appointees whose terms end in late 2018 and 2019.  Although Trump can create a Republican-appointed majority by filling the two vacancies, he has not done so.

Brad stated that even after Republican appointees are a majority of the NLRB, change will take time because the NLRB tends to interpret the law in decisions rather than through rulemaking.  As a result, it will have to wait for the right case to come before it before it can change its view of the law.

Brad argued that the Obama administration’s NLRB was the most aggressive in limiting the rights of employers and expanding the rights of individual employees and unions in history.  He emphasized that, while a Trump NLRB will likely take a different course and even overturn many of the recent decisions of the NLRB, it will take time before these changes are made.  For more information about Brad’s presentation, see link.

Implications For Employers

While the Trump administration will result in changes to the way government agencies interact with employers, these changes will occur gradually.  Further, employers should not expect a decrease in enforcement actions brought by government agencies against employers.  The latest budget proposal out of the Trump administration keeps funding for these agencies steady, which will allow them to continue to operate at the level they operated at in the prior administration.

 

By Dawn Reddy Solowey

Seyfarth Synopsis: Anti-Muslim rhetoric dominates many media headlines.  A May 9, 2017 decision by the U.S. Court of Appeals for the Second Circuit highlights the risks to an employer when anti-Muslim rhetoric enters the workplace.

The Facts

In Ahmed v. Astoria Bank et al., the Second Circuit considered a claim brought by a plaintiff employee who had been terminated from her employment at Astoria Bank, at the end of her probationary period, for tardiness and carelessness in checking important documents.  The employee’s claims included that she had been subjected to a hostile work environment because she is Egyptian and Muslim.

The History

The District Court had granted summary judgment to the employer. As to the hostile-environment claim, the Court had reasoned that the alleged stray comments did not rise to the required “severe and pervasive” level.  The employee appealed only the ruling on the hostile environment claim.

The Second Circuit’s Holding

The Second Circuit reversed, holding that a reasonable jury could find that the employee was subject to severe and pervasive discriminatory harassment. The Court relied principally on the employee’s evidence that the supervisor “constantly” told her to remove her hijab head-covering, which he referred to as a “rag”; demeaned her race, ethnicity and religion “on several occasions”; and made a comment during her September 11, 2013 interview that she and two other Muslim employees were “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything.”

Considering this evidence, together with allegations such as that another manager used hand gestures and spoke slowly to the plaintiff in everyday conversation as if to suggest she did not know English, the Second Circuit held that a jury could conclude that the plaintiff was subject to a “steady barrage of opprobrious” racial and anti-Muslim comments.

On that basis, while acknowledging the evidence was “on the knife’s edge” between summary judgment and trial, the Court reversed the District Court’s grant of summary judgment and remanded for a jury trial.

The Broader Context

Concerns about anti-Muslim sentiment affecting the workplace are hardly new. We’ve blogged before about the EEOC’s 2016 Questions and Answers for employers concerning workers who are, or are perceived to be, Muslim or Middle Eastern.

In that publication, issued in the wake of the Paris and San Bernandino attacks, the EEOC posited that, “Reactions in the workplace to world events demand increased efforts by employers to prevent discrimination.” Since then, the need has arguably only increased.

So What Can Employers Do?

Employers can take preventative steps to mitigate the risks.

  • The current climate is an opportunity for employers to take a fresh look at anti-discrimination and harassment policies, complaint mechanisms, and accommodation practices, to ensure compliance with federal, state and local laws.
  • Effective training not only helps prevent litigation, but can assist a defense. All employees should be trained that harassment and discrimination – including comments such as those alleged in the Ahmed case – will not be tolerated.  Training that is specific and interactive is most effective.
  • Companies should further train managers on nondiscriminatory hiring practices, and how to manage employee complaints.
  • Managers should also be aware of the need to consider accommodations for certain religious practices, such as the wearing of a hijab, and how to process such requests. Managers should be trained that an employee who receives a religious accommodation should never be subject to negative comments as a result.
  • When an employee complains of alleged discrimination or harassment, the employer should investigate promptly, and if a violation is found, take prompt remedial action.

 

By Paul Galligan and Samuel Sverdlov

Synopsis:  The Seventh Circuit affirmed a summary judgment decision in favor of the employer on the plaintiff’s race discrimination and civil conspiracy claims where the employer did not hire the plaintiff after the plaintiff tested positive for marijuana at orientation.

Last month, in Turner v. Hirschbach Motor Lines, the Seventh Circuit affirmed the district court’s granting of summary judgment in favor of Hirschbach Motor Lines (Hirschbach) on plaintiff, Robin Turner’s claims of race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and civil conspiracy under state law.

Background

Mr. Turner, an African American, was initially offered a job at Hirschbach as a commercial truck driver on the condition that he complete both the company orientation and a drug test. During orientation, Turner tested positive for marijuana.  Pursuant to Department of Transportation (DOT) regulations, Turner’s drug test was carried out at an independent medical facility, the urine sample was split into two, and the results of the first half of the sample were given to Turner through Hirschbach’s independent medical review officer.

Once Turner was given his results, Hirschbach’s safety officer explained to Turner that he had the right to request that the second half of his urine sample be tested at different laboratory. Turner told the safety officer that he wanted the second split test, but for disputed reasons, the second split test never happened.  Turner alleged at deposition that the safety officer cancelled the second split test.

Hirschbach ended up not hiring Turner. Pursuant to DOT regulations, Hirschbach reported Turner’s positive drug test “to an industry consortium from which future employers could, with Turner’s permission, seek his previous test results.” In turn, Turner filed race discrimination and conspiracy claims against Hirschbach.  Specifically, Turner alleged that: (1) Hirschbach did not hire him because of his race; (2) Hirschbach reported his drug tests to the industry consortium because of his race; and (3) Hirschbach conspired with the independent medical review officer to cancel the second split test.

Decision

Hirschbach moved for summary judgment on all of Turner’s claims. Turner argued that he could withstand Hirschbach’s summary judgment motion on a “cat’s paw theory.” Said otherwise, Turner argued that Hirschbach’s safety officer, who was not a decision-maker in Turner’s hiring, had racial animus towards Turner, which was a proximate cause of the decision to not hire Turner.  The district court was unpersuaded.  The court held that Turner did not put forth any evidence that: (1) the initial drug test was unreliable; (2) the second test would have been negative; or (3) the decision-maker based her decision on race rather than the positive drug test.  Further, the court held that reporting Turner’s negative drug test to the consortium was non-discriminatory because it was required by federal regulations.  Finally, the district court held that Turner’s conspiracy claim failed because there was no evidence on the record that Hirschbach and the independent medical review officer had an agreement to cancel the split test.

On appeal, Turner challenged the district court’s decision, and argued that he should have defeated summary judgment based on the simple assertion that the cancellation of the second split test violated DOT regulations. However, the Seventh Circuit held that Turner’s burden is greater than demonstrating a mere violation of a federal regulation.  Rather, given that the employer had put forth evidence that Hirschbach would not have hired someone who failed a drug test, Turner had “to support his cat’s paw theory with evidence casting doubt on the reliability of the initial drug test.”  Turner’s lack of evidence that the first test was a “false positive,” or that a second test would have come back negative, is fatal to Turner’s discrimination claim.  Regardless, the court held that Turner has not put forth evidence that Hirschbach actually violated any federal regulations.

Outlook

The Seventh Circuit’s decision in Hirschbach is a big win for employers, especially those employers who are subject to DOT or other onerous regulations.  Employers should rejoice in the Seventh Circuit’s willingness to hold Turner accountable for his burden of establishing a connection between the alleged racial animus and the adverse action.  However, employers should remain cautious and vigilant when taking adverse action against employees for hot-button issues such as failed drug tests.  Although the employer prevailed in Hirschbach, the court reminded employers that employees could prevail on a race discrimination claims where there is evidence of similarly situated employees of other races being treated differently.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment or Workplace Policies and Handbooks Teams.

By Richard D. Lutkus

Hacker attacking internetSynopsis:  Today we explore details regarding a worldwide ransomware outbreak, including some information about the attack campaign, how to avoid becoming a victim, and what to do if you already are one. 

Recently, a widespread global ransomware attack has struck hospitals, communication, and other types of companies and government offices around the world, seizing control of affected computers until the victims pay a ransom.  This widespread ransomware campaign has affected various organizations with reports of tens of thousands of infections in as many as 99 countries, including the United States, United Kingdom, Spain, Russia, Taiwan, France, and Japan.  The software can run in as many as 27 different languages.  The latest version of this ransomware variant, known as WannaCryWCry, or Wanna Decryptor, was discovered the morning of May 12, 2017, by an independent security researcher and has spread rapidly.

The risk posed by this ransomware is that it enumerates any and all of your “user data” files like Word, Excel, PDF, PowerPoint, loose email, pictures, movies, music, and other similar files.  Once it finds those files, it encrypts that data on your computer, making it impossible to recover the underlying user data without providing a decryption key. Also, the ransomeware is persistent, meaning that if you create new files on the computer while it’s infected, those will be discovered by the ransomware and encrypted immediately with an encryption key.  To get the decryption key, you must pay a ransom in the form of Bitcoin, which provides the threat actors some minor level of anonymity.  In this case, the attackers are demanding roughly $300 USD.  The threat actors are known to choose amounts that they feel the victim would be able to pay in order to increase their “return on investment.”

The ransomware works by exploiting a vulnerability in Microsoft Windows.  The working theory right now is that this ransomware was based off of the “EternalBlue” exploit, which was developed by the U.S. National Security Agency and leaked by the Shadowbrokers on April 14, 2017.  Despite the fact that this particular vulnerability had been patched since March 2017 by Microsoft, many Windows users had still not installed this security patch, and all Windows versions preceding Windows 10 are subject to infection.

The spread of the malware was stemmed on Saturday, when a “kill switch” was activated by a researcher who registered a previously unregistered domain to which the malware was making requests.  However, multiple sources have reported that a new version of the malware had been deployed, with the kill switch removed.  At this time, global malware analysts have not observed any evidence to substantiate those claims.

You should remain diligent and do the following:

  • Be aware and have a security-minded approach when using any computer. Never click on unsolicited links or open unsolicited attachments in emails, especially from sources you do not already know or trust.
  • Ensure that your antivirus and anti-malware are up-to-date.
  • Apply Security Updates! Enable automatic updates and reboot weekly.  Systems that are receiving automatic updates should already be protected against this malware.  If you aren’t sure, visit https://support.microsoft.com/en-us/help/3067639/how-to-get-an-update-through-windows-update
  • Backup your data! The risk of malware is losing your data.  If you perform regular backups, you won’t have to worry about ransomware. Make sure you utilize a backup system that is robust enough to have versioning so that unencrypted versions of your files are available to restore. Make sure your backup system isn’t erasing your unencrypted backups with the encrypted ones!

If your organization is the victim of a ransomware attack, please contact law enforcement immediately.

  1. Contact your FBI Field Office Cyber Task Forceimmediately to report a ransomware event and request assistance. These professionals work with state and local law enforcement and other federal and international partners to pursue cyber criminals globally and to assist victims of cyber-crime.
  2. Report cyber incidents to the US-CERT and  FBI’s Internet Crime Complaint Center.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Global Privacy & Security (GPS) Team or the eDiscovery and Information Governance Team.

By Pamela Q. Devata , Robert T. Szyba, and Stacey L. Blecher

Seyfarth Synopsis: On May 4, 2017, New York’s highest court, the Court of Appeals, held that the New York State Human Rights Law (NYSHRL) prohibits employers from discriminating on the basis of criminal conviction history. Entities that are not direct employers may also be liable, however only for aiding and abetting a violation of the NYSHRL.

In Griffin v. Sirva, Inc., the U.S. Court of Appeals for the Second Circuit (Second Circuit) posed three questions to the New York Court of Appeals (Court of Appeals), New York’s highest court, regarding the appropriate interpretation of New York state law, the NYSHRL. Specifically, the Court of Appeals was asked to determine whether (1) Section 296(15) of the NYSHRL, which prohibits discrimination against individuals with prior criminal convictions, is limited to a party’s “employer”; (2) if so, is an “employer” only a “direct employer,” or can the coverage extend to other related entities; and (3) does Section 296(6), which provides for aiding and abetting liability, apply to Section 296(15) to impose liability on out-of-state entities that may have a connection to an in-state employer?

As background, the direct employer in the case was Astro Moving and Storage Co., who was a contractor for Allied Van Lines. Plaintiffs had convictions for sex crimes with minors, which disqualified them from working for Allied, and Astro terminated their employment because they could not perform services for Allied.  Plaintiffs sued Astro, Allied, and Sirva, Inc. (Allied’s parent).  Among other claims, Plaintiffs alleged discrimination due to their criminal conviction histories, as prohibited by Section 296(15) of the NYSHRL.  As is most relevant here, they sued Allied (which was not their direct employer).  Thus, since the interpretation of the NYSHRL had not been resolved on this point, the Second Circuit certified its questions to the Court of Appeals.

In its response, the Court of Appeals held definitively that Section 296(15) of the NYSHRL is limited to direct employers. Although the statutory text states that “any person” is prohibited from discriminating, the Court nevertheless found that this language was contextually designed to target direct employers.

With respect to the second question, the Court of Appeals clarified who the NYSHRL considers an “employer.” To make the determination, the Court of Appeals turned to the common law test for determining the employer-employee relationship, as enunciated by New York’s Appellate Division, Fourth Department, in State Div. of Human Rights v. GTE Corp., 109 A.D.2d 1082 (4th Dept. 1985).  The test consists of four factors: “(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct.”  The primary focus on this test, the Court of Appeals quoted the Fourth Department, is the “right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter.”  This pronouncement is noteworthy in that it clarifies the definition of “employer” for NYSHRL claims.

Last, the Court of Appeals turned to the breadth of liability for aiding and abetting, under Section 296(6). The Court noted that one does not need to be a direct employer, or have any employment connection to the plaintiff. The Court pointed out, for example, that in National Org. for Women v. State Div. of Human Rights, 34 N.Y.2d 416 (1974), a newspaper company had no employment relationship with the plaintiff, but was nevertheless found to have aided and abetted discrimination by running two sets of help wanted ads: a separate list of jobs for men, and a separate list of jobs for women, despite the fact that the newspaper did not employ anyone from these ads. The Court also noted that the NYSHRL has an extraterritoriality provision that captures out-of-state actors when their acts have an impact within the state. Thus, an out-of-state entity can be liable for acts that constitute discrimination, or aiding and abetting, that have an impact in New York.  This interpretation is not a change in the lower court’s opinions, but an affirmation that  third party entities should understand that if they have control over hiring decisions, they could be at risk.

Outlook and Potential Ramifications

The Court of Appeals has made certain clarifications that have a potential impact on any employer, as well as any entity who works with another entity that is an employer, where questions surrounding criminal background checks come up that have an impact on employees in New York. Beyond direct employers, who are directly covered by Section 296(15), non-employers, even those outside New York, may nevertheless find themselves ensnared in a claim under the NYSHRL for aiding and abetting. Thus, the ramifications of this decision extend beyond the universe of direct employers, and beyond New York’s state lines. Employers within New York would be well-served to revisit their compliance requirements with Section 296(15). Further, any companies who does business with a New York employer, regardless of whether the company is located in or outside of New York, would likewise be well-served to review their business practices for any “impact in New York” that might run afoul of the NYSHRL.

Those with questions about these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Background Screening Compliance & Litigation Team.

 

By Michael W. Stevens

Seyfarth Synopsis:  With Justice Neil Gorsuch joining the Supreme Court in April, and the apparent re-emergence of a 5-4 split, we expect to see the Court issue more expansive opinions and be less reticent to grant certiorari.  The addition of Justice Neil Gorsuch is likely to have particular impact in the field of labor and employment law.

Since Justice Antonin Scalia’s death in February 2016, the lack of a ninth justice on the U.S. Supreme Court left the Court without a discernible majority of liberal or conservative justices. The four-four split between more liberal and more conservative justices led to two outcomes:  first, some opinions contained narrower holdings than they otherwise may have in order to command a majority.  Second, it appears the remaining eight justices voted more defensively on certiorari, as the outcome of cases may have been more difficult to predict.  The addition of Gorsuch could impact a number of labor and employment cases currently pending or awaiting certiorari from the Court.

The most important employment law case on the Court’s docket is Epic Systems Corp. v. Lewis, No. 16-285.  In Epic, the Seventh Circuit held that the inclusion of a class action waiver in an arbitration agreement violated the National Labor Relations Act, finding that participating in a class is a “concerted activity” protected by the NLRA.  This holding is directly contrary to other circuit courts, which have found that class action waivers are enforceable under the Federal Arbitration Act.

In deciding Epic, the Court may provide further guidance on its approach to statutory construction, and make a key ruling affecting employers’ ability to channel disputes with employees to arbitration on an individualized basis.  Although it is always difficult to prognosticate Supreme Court decisions, many observers believe that Justice Gorsuch is likely to favor arbitrability of disputes.

With other employment cases queueing up for Supreme Court review, Justice Gorsuch’s addition to the Court is likely to have an important impact on how cases are decided.   Gorsuch has taken a strictly textualist approach to resolving matters of statutory construction, and has called into question Chevron deference. See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch, J., concurring) (describing Chevron deference as an “abdication of the judicial duty”).  For example, in TransAm Trucking, Inc. v. Administrative Review Board, 833 F.3d 1206 (10th Cir. 2016), then-Judge Gorsuch dissented from a finding that an employer trucking company impermissibly terminated an employee for operating a vehicle in contravention of the employer’s instructions, but who claimed to be doing so for his own safety.  Because the statutory phrase provided protection for employees who “refuse[] to operate a vehicle,” Gorsuch asserted that the statute did not protect an employee who operated a vehicle against the employer’s instructions.

This strictly textualist approach may have substantial ramifications in labor and employment cases. Just last month, the Seventh Circuit found that Title VII of the Civil Rights Act protects lesbian, gay, and bisexual (“LGB”) employees from discrimination based on sexual orientation. See Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017).  In Hively, the Seventh Circuit reasoned that an LGB person who is discriminated against because of the gender of her partners (i.e., a female employee who has a female partner is terminated, but a male employee who also has a female partner is not) has experienced discrimination because of sex.  Although it appears that the employer in Hively is not planning to seek certiorari, there is a circuit split on this issue, and it is easy to imagine that this will soon be teed up for Supreme Court review.  It is unclear whether Justice Gorsuch’s strict textualism would support the Seventh Circuit’s decision, but that may be unlikely.

Justice Gorsuch’s addition to the Court will also have impact on employers in other areas of the law that intersect with employment issues. For example, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, has been pending on the Supreme Court docket for an unusually long time, and certiorari has yet to be granted or denied.  In Masterpiece, a baker was found to have violated Colorado’s Anti-Discrimination Act by refusing to bake a wedding cake for a same sex couple.  The baker is seeking Supreme Court review, claiming that the anti-discrimination law violates the First Amendment and religious liberty protections.

While on the Tenth Circuit, Justice Gorsuch wrote a concurrence in Hobby Lobby in favor of expansive interpretations of religious liberty.  However, with Justice Kennedy routinely writing watershed opinions in favor of legal protections for LGBT people, it is unclear how a case like Masterpiece Cakeshop would be decided, and considering the conflicting issues, whether there are four votes in favor of certiorari.

Becoming the 101st Supreme Court Justice, Neil Gorsuch is likely to have a tremendous impact on labor and employment cases. Stay tuned to this blog as we examine new decisions as they are handed down.

FUN FACT: The photo of Justice Gorsuch is courtesy of Seyfarth Shaw L&E partner Kyle Peterson (second from right), who was recently sworn in before the US Supreme Court as part of a trip to Washington, DC, sponsored by the Women’s Bar Association of Illinois. 

 

 

By Karla E. Sanchez and Craig B. Simonsen

Seyfarth Synopsis: Employer must reinstate four employees after it terminated the employees for agreeing with a former coworker’s email that complained about their terms and conditions of employment.

Recently, a National Labor Relations Board Administrative Law Judge ruled that a restaurant unlawfully reprimanded and discharged several employees in violation of Section 8(a)(1) of the National Labor Relations ActMexican Radio Corp., Case No. 02-CA-168989 (April 26, 2017).

A series of disagreements between a new manager and several of the restaurant’s employees led to several employees reaching out to management to complain about the new manager and to one employee quitting her employment. After resigning, the employee sent management and several of her former coworkers a lengthy email that management described as “hurtful and mean spirited.”  The email went through the reasons why she had worked at the restaurant, why she had loved working with her coworkers, and how the new manager had changed that.  She complained about how the new manager treated them, how several coworkers had complained to other managers, who according to her, did nothing, and she alleged that the new manager was engaging in unlawful conduct. Four employees replied to the email in agreement with the sender and thanked her for sending the email.

Management, who also received the coworkers’ replies, viewed the replies as “deeply insubordinate.” As a result, management decided to meet with the four coworkers to ask them on an individual basis why they had supported their former coworker and agreed with the contents of the email. All four were discharged for, among other things, allegedly engaging in insubordination and agreeing with an email that contained “false accusations of management” and had used “inappropriate language,” including profanity.

The ALJ found that the restaurant unlawfully discharged the four employees for replying to the former coworkers’ email. The ALJ found that the employees’ conduct had been protected, concerted activity. The ALJ noted that these four employees had complained to management about the new manager and about their working conditions and that their replies to the email was an extension of this protected, concerted activity. The email itself also addressed their working conditions, and thus, responding to it was also protected, concerted activity.

The restaurant tried to argue that the email was “opprobrious conduct,” and therefore, lost the protections of the Act. The ALJ disagreed, finding:

  • The four employees did not add anything negative to the original email;
  • The email was a part of an ongoing dialogue between the restaurant and the workers;
  • The email contained little profanity and did not constitute insubordination, but rather, was “a critique of the management style” of the restaurant;
  • The email was distributed internally and did not cause a loss of reputation or business for the restaurant; and
  • The email did not cause a disruption of the business.

The ALJ ordered the restaurant to reinstate the four employees to their former positions, to make them whole for their lost earnings, to pay them for their job-search and interim employment expenses, to remove any reprimands from their files, and to post at the restaurant a standard NLRB notice.

The takeaway for employers:  Employers must be careful when confronted by employees’ criticisms, complaints, and allegations, whether in person, by email, or by posting on social media platforms.  While some “complaints” might not be protected by law and/or might constitute insubordination, an employer should discuss the particulars with an attorney before determining whether the conduct warrants discipline or termination.  Some “complaints,” even when profanity is used and even when they are hurtful to the reader, are protected under the NLRA or other laws, and adverse conduct taken against the employees will be found to be unlawful.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Social Media Team or the Workplace Policies and Handbooks Team.

Seyfarth Synopsis: The Second Circuit agrees with the Board that the use of profanity in a Facebook post was not “opprobrious enough” to lose the NLRA’s protections and justify the employer’s termination of the employee.

A server whose “conduct [sat] at the outer bounds of protected, union-related comments” when he posted that his manager is a “nasty mother f***er” and “f*** his mother and his entire f***ing family,” was not “opprobrious enough” to lose the protection of the NLRA, a three-judge panel for the Second Circuit Court of Appeals ruled in NLRB v. Pier Sixty, LLC, No. 15-1841 (2nd Cir. Apr. 21, 2017).

Pier Sixty operates a catering company in New York, NY. In early 2011, many of its service employees began seeking union representation.  Following a very contentious union organizing campaign, Pier Sixty employees voted to unionize on October 27, 2011.

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people !!!!!! F*** his mother and his entire f***cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was publicly accessible and Perez knew that his post would be visible to his coworkers. Perez removed the post three days later. Management, however, had already become aware of the post, and after an investigation, the employer terminated Perez on November 9, 2011.

Perez filed an NLRB charge alleging retaliation for engaging in protected concerted activities. On April 18, 2013, the ALJ issued a decision finding that Pier Sixty had violated sections 8(a)(1) and 8(a)(3) of the NLRA by discharging Perez in retaliation for his protected activity. Pier Sixty filed exceptions, and a three-member panel of the NLRB affirmed the ALJ’s decision on March 31, 2015.  The NLRB filed an application for enforcement, and Pier Sixty filed a cross-petition for review.

The Second Circuit affirmed the NLRB’s determination based on the deference afforded to the ALJ’s factual findings. The Court explained that in light of the General Counsel’s guidance for evaluating employees’ use of social media to post public criticisms of their employers and workplaces, a nine-factor “totality of the circumstances” test in social media cases had emerged.  The Court acknowledged that while the test the ALJ applied may not have “adequately balance[d] the employer’s interests, Pier Sixty did not object to the ALJ’s use of the test in evaluating Perez’s statements before the Board.”   Accordingly, the Court did not address the validity of the applied test.

Rather, Pier Sixty argued that the Board’s decision that the comments were not so egregious as to exceed the Act’s protection was not supported by “substantial evidence” in the record. The 2nd Circuit disagreed and found:

  • Although the post contained vulgar attacks, the subject matter of the message included workplace concerns.
  • Pier Sixty consistently tolerated widespread profanity amongst its workers, including supervisors, and had never before terminated any employees for such behavior until two days before the union election.
  • The location of the comments was an online mode of communication among coworkers and was not in the immediate presence of coworkers.

Accordingly, the Court found that the Board did not err in ruling that the post, while “vulgar and inappropriate,” was not so egregious as to exceed the NLRA’s protection.

Takeaways for Employers:

  • The Board will not apply the Atlantic Steel test to cases involving social media, even if the posts are public in nature, in light of the fact that the place of discussion is the internet and not face-to-face in the workplace.
  • Companies should ensure policies and handbooks comply with the NLRB’s current guidance on social media and do not interfere with employees engaging in protected concerted activity when off duty. However, while policies prohibiting vulgar and offensive comments need to be sensitive about infringing on NLRA-protected rights, employers should not hesitate to enforce those policies in appropriate circumstances.
  • Employee discipline should not be selectively enforced to prohibit behaviors that relate to union-related activities; discipline should be applied uniformly to all employees.

By Erin Dougherty FoleyAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Minnesota Supreme Court found that a job applicant need only prove that the employee’s interest in a 12-week maternity leave was the “substantial causative factor” that “actually motivated” the employer’s decision to rescind her job offer and did not need to show anger or hostility about pregnancy under the Minnesota Human Rights Act.

In a recent Minnesota Supreme Court case, LaPoint v Family Orthodontics, P.A., A15-0396 (Apr. 5, 2017), a plaintiff challenged an orthodontist’s decision to rescind her job offer after learning she was pregnant and would take maternity leave.  The plaintiff argued that she had been discriminated against on the basis of her pregnancy because her pregnancy played a role in the employer’s  decision to rescind her job offer.  The district court ruled for the employer at a bench trial!

In setting the standard of proof, the Court relied on Goins v. West Grp., 635 N.W.2d 717 (Minn. 2001) and Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619 (Minn. 1988). Goins required that a plaintiff prove that the pregnancy “actually motivated” the employer’s decision not to hire. Anderson required that plaintiff demonstrate that the pregnancy was “a substantial causative factor” in the employment decision.

The Court rejected the notion that the pregnancy must be a “but-for” cause of the employer’s conduct. As such, the plaintiff need not prove that the employer would have hired her absent unlawful discrimination in order to establish liability, and “proof by the employer that it would have made the same decision absent a discriminatory motive is no defense.”

According to the Court, the employer stated, on three separate occasions, that the plaintiff’s failure to disclose her pregnancy (1) was one of the “two things [that] really kept [her] from sleeping well”; (2) was one of her “concerns”; and (3) left her “confused,” one of “two concerns” that together constituted “[t]he reason why [she] withdrew the job offer.” Further, the plaintiff argued that “rescinding a job offer because a person fails to disclose a pregnancy is illegitimate discrimination on the basis of sex.” More so, the district court found that the defendant “questioned why plaintiff did not bring [her pregnancy] up initially so they could discuss leave of absence issues at that time,” but that “[h]er concern was the [effect of the] length of the leave sought by plaintiff on the practice.”

The Court recited that the defendant “did not demonstrate any animus toward plaintiff because of her pregnancy. Her overriding concern was the disruption a twelve week maternity leave would have on her practice and the impact upon her employees should she deviate from the Clinic’s longstanding policy of six weeks.”

Finally, the Court concluded that it was unable to determine whether the district court, if it had applied the correct law regarding animus, would have made the same findings of fact. Accordingly, the Supreme Court remanded the case.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Jason E. Burritt, Michelle Gergerian, and Dawn M. Lurie

Seyfarth Synopsis: If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.

Background

A federal government shutdown could begin at midnight on Friday, April 28 if Congress fails to pass a funding bill. This means that, effective Monday, May 1, only “essential” government workers would report to work until Congress passes a spending bill.

U.S. Citizenship and Immigration Services (USCIS)

USCIS would be minimally impacted because it is largely a user-fee funded service. The vast majority of USCIS workers would continue to report to work during a shutdown. This means USCIS would continue to process applications and petitions for immigration benefits, with some processing delays possible. As explained below, however, petitions for which a Department of Labor (DOL) certification is required — such as the H-1B that requires a Labor Condition Application (LCA) -­may be adversely affected. USCIS has not yet announced whether it would temporarily accept extensions without DOL-certified LCAs, although historically USCIS has not.

E-Verify, USCIS’ free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, would be inaccessible during the shutdown. However employers are reminded that they must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system. During a prior shutdown, USCIS issued guidance suspending the “three day rule” for any case affected by the shutdown.  Historically employees caught in the Tentative Non-Confirmations (TNCs) process were provided an extended time period to resolve the issue.

Again, employees would still be required to complete Section 1 of the Form I-9 on or before the first day of employment and employers would still need to complete Section 2 of the Form I-9 no later than the third business day after an employee begins working for pay.

Other components of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) are expected to retain most of their essential staff. CBP has not yet indicated whether it would process immigration applications at the border, such as initial TN and Blanket L applications for Canadian nationals, but it is expected that these adjudications would continue.

Department of Labor

Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL, are considered non-essential and would be placed in furlough status during the government shutdown. OFLC would neither accept nor process any applications or related materials, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, PERM audit responses or applications for permanent employment certification (.e.g PERM applications). OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts. Employers with concerns about these deadline-specific functions should consult an immigration attorney with questions about proper maintenance of status during these uncertain times.

Department of State (DOS)

Visa issuance should continue, at least temporarily. Domestic and overseas Consular operations should remain fully operational as long as sufficient fees exist to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. The continuance of consular operations in such instances would be treated on a case-by-case basis by the Under Secretary for Management.

Department of Justice (DOJ)

DOJ trial attorneys and immigration judges should conduct removal (deportation proceedings) only for individuals in federal custody at least for a short period of time. All other cases would likely be suspended during the shutdown. Similarly, furloughed would be attorneys and staff within the Immigrant and Employee Rights section of DOJ charged with accepting and investigating charges of workplace discrimination arising under the immigration laws.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Business Immigration Group.

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