Can An Employer Force Out An Employee For Unpopular Political Views: The Brendan Eich Story

Brendan Eich resigned his post as CEO of Mozilla, a California-based company, in early April after just 14 days on the job.  The reason for his sudden departure and short tenure?  It became public that in 2008, Eich contributed $1,000 in support of the Proposition 8 campaign, the California voter referendum that sought to ban same-sex marriages (Proposition 8 was later overturned by the U.S. Supreme Court).  There were no allegations that Eich had discriminated against anyone on the basis of sexual orientation.  There were no claims that his personal beliefs about gay marriage had spilled into the workplace impacting Mozilla employees, vendors or workplace policies.  There was, however, a firestorm of tweets from Mozilla employees demanding Eich step down.  One employee placed herself on unpaid leave in protest.  OkCupid posted a statement that Mozilla Firefox browser users should protest Eich’s elevation by switching to a different Internet browser.  The reaction on social media opposing Eich as the next CEO was swift and vocal.  Mozilla has since stated that less than 10 of its 1,000 employees insisted upon Eich’s resignation, while many others supported his leadership and only expressed disappointment of Eich’s support of Proposition 8.   Continue reading

Federal Court Enforces NLRB’s Decision To Strike Down Overbroad Confidentiality Policy

Eighteen months ago, we reported on a slate of decisions from the National Labor Relations Board (NLRB) which struck down social media, confidentiality and other similar policies from non-union employee handbooks.  In a surprising turn, the Fifth Circuit Court of Appeals recently enforced one of those decisions in Flex Frac Logistics LLC v. NLRB.   Continue reading

NLRB Judge Finds That College Football Players Are Employees Of Their University

Today, an administrative judge at the National Labor Relations Board (NLRB) found that student athletes on Northwestern University’s football team who receive a scholarship are employees of the university and therefore eligible to form a union.  The decision, while not the decision of the full NLRB, is a major departure from NLRB precedent and one very fraught with consequences for universities and other employers in educational fields. Continue reading

President Obama Directs DOL To Overhaul Federal Overtime Regulations

Ordinarily, changes to federal overtime regulations get very little notice in California since our State’s overtime laws are far more protective of employees than the federal Fair Labor Standards Act (FLSA).  But President Obama’s proposed changes to FLSA regulations, announced on March 13, 2014, are causing shockwaves to be felt even in California. When the FLSA regulations are modified, California employers are going to have to reconsider whether salaried employees meet the new requirements. Continue reading

Empowering the Bystander: Workplace Harassment and Bullying – Lessons from Richie Incognito and Jonathan Martin

After reading the Ted Wells investigation report of the Richie Incognito and Jonathan Martin matter, I had several reactions.  Most focused on Incognito’s reprehensible and vile bullying of Martin, primarily aided by his two teammates, Mike Pouncey and John Jerry.  After reflecting on the workplace environment that allowed such repeated atrocious conduct to occur, I wondered where were the other players when this was taking place.  There must have been “high character” players who heard the conduct and appreciated that it went far over the line of what would be tolerable teasing in the name of bonding.  Yet the Wells report does not identify teammates taking affirmative steps to stop the offensive behavior.  Some players interviewed were evidently wanting Martin to take action to defend himself.  However, for a complex set of reasons, Martin did not do so. Continue reading

San Francisco “Bans The Box” For Private Employers

As we first discussed here, “ban the box” state laws and local ordinances are picking up traction nationwide.  Measures vary in scope and nature, but the typical policy bars employers from asking for criminal history information on job applications.  Instead, the employer may only obtain criminal background information after they determined the candidate is suited for the job.  Four states and numerous municipalities have already banned the box for private employers, including Minnesota, Massachusetts, and Newark, New Jersey.  Now, the San Francisco Board of Supervisors has joined this growing group in passing the “Fair Chance Act,” an ordinance amending the City’s Police Code.  Mayor Ed Lee approved the ordinance on February 14, 2014. Continue reading

E-Cigarettes Banned In Some California Workplaces

Electronic cigarettes are battery-operated devices that emit vaporized doses of nicotine (or non-nicotine) that is inhaled.  The vapor produced by e-cigarettes is smokeless and does not contain the amount of harmful chemicals that regular cigarettes have.  Many fans of electronic cigarettes credit these devices with helping them to cut down on or quit smoking altogether. Continue reading

What The Delay In The ACA Employer Mandate Means For You

On Monday, the Obama Administration announced that for the second time in a year, employers with 50 to 99 employees will have extra time — until January 1, 2016 — before they are required to offer health insurance to almost all their full-time workers. Initially, the employer mandate was to take effect on January 1, 2014, but last summer, the Obama Administration delayed that deadline until January 1, 2015 for all employers. Continue reading

The NLRB Takes Another Stab At Quickie Elections

In 2011, the National Labor Relations Board issued a rule which would have allowed for so-called “quickie” union elections.  Under current rules, the time between the filing of a petition for a union election and the election itself is generally over a month, at times even longer.  Under the “quickie” rule, union elections could take place within a few weeks, putting unprepared employers at a significant disadvantage.

In 2012, the “quickie” rule was dealt a blow by a federal judge who found that the NLRB’s lack of a quorum at the time prohibited the rule from taking effect.  Late last year, the NLRB decided not to seek further review of that decision.

It was no secret why the NLRB backed down: by last year, it had five Senate-approved members, which gave it a quorum and the ability to issue the rule again.  Today, it did just that.  The Board issued a press release stating that the “quickie” election rule would be issued on February 6, 2014 and would be identical in substance to the 2011 rule.

This is bad news for employers, as the procedural mishaps which hampered the 2011 rule have been addressed and no longer exist.  In all likelihood, the rule will take effect in 2014.

What should employers do to prepare?   Employers need to ensure that supervisors know what to do when confronted with talk by employees about union activity.  The single best way to accomplish that is by conducting preventative labor relations training with supervisors so that they know the telltale signs of union activity and the best practices for confronting it.

- Dan Handman 


U.S. Supreme Court Takes The Wind Out Of Donning And Doffing Class Actions

For years, plaintiffs’ lawyers have brought class actions against employers seeking compensation for time spent by employees putting on and taking off protective gear.  The numbers have been staggering, as eight figure settlements have become commonplace. That is especially true in industries using heavy machinery, like poultry producers.

The Department of Labor has taken the position that time spent by employees changing clothes is compensable when it is “so directly related to the specific work the employee is employed to perform that [it] would be regarded as an integral part of the employee’s ‘principal activities.’”  So, getting dressed to go to work in the morning is not compensable for an employee in a professional workplace.  But, what about an employee who has to wear protective gear at work?  According to the DOL, that time ordinarily is compensable. For example, in a 2005 decision, the U.S. Supreme Court found that time spent donning and doffing protective gear by employees in a poultry plant was compensable because it was integral to their work.

However, the Fair Labor Standards Act (FLSA) contains an exception to that rule for employees who work under a collective bargaining agreement.  Under the FLSA, an employer and a union can agree that time spent “changing clothes” can be excluded from working time.  Often, employees who wear the protective gear that is commonly the subject of these suits work in unionized workplaces, so this exception to the rule has been heavily litigated.

The plaintiffs’ bar maintains that time spent “donning” and “doffing” protective gear is not “changing clothes” and therefore cannot be excluded in a union contract.  Why?  They argue: (1) protective gear are not “clothes”; and (2) no clothes are being “changed” — they are merely being put on top of an employee’s street clothes.

After decades of uncertainty, the U.S. Supreme Court entered the fray and, for once, issued a unanimous decision favoring employers.  In Sandifer v. United States Steel Corp.the Court found that a union contact can, in most cases, exclude time spent donning and doffing protective gear is non-compensable under the FLSA and, in so doing, rejected most of the arguments set forth by the plaintiffs’ bar.  It rejected the argument that “clothes” do not include protective gear. And it rejected the notion that putting on protective gear was not “changing” clothes if an employee put the gear over his street clothes.

In this particular case, the Court found that most of the gear involved — a jacket, pants, a hood, a hardhat, gloves, leggings, and boots — were “clothes” that could be excluded from compensation in a collective bargaining agreement.  It did, however, find that glasses, earplugs and a respirator are not “clothes.”  But on that last point, it found that if the majority of the time spent by employees was spent donning and doffing “clothes,” the fact that non-”clothes” were involved did not render any time spent donning and doffing them compensable.

For employers operating under a union contract, this a big win.  They now enter bargaining knowing that this time can be excluded and their litigation risks significantly minimized.

- Dan Handman