NLRB Strikes Down “Negativity” 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.  Last week we reported that, in a surprising turn, the Fifth Circuit Court of Appeals recently enforced one of those decisions in Flex Frac Logistics LLC v. NLRB.  This employer had a written confidentiality policy that prohibited the disclosure of “confidential information,” which applied to not only sensitive business information like business plans, pricing and cost schedules and other intellectual property, but also to “personnel information and documents.”  The NLRB decided—and the 5th Circuit affirmed—that the policy was overbroad because it could be read to prohibit employees from discussing their wages. Continue reading

Supreme Court Strikes Down Affirmative Action In Public Universities Again

On April 22, 2014, in Schuette v. Coalition to Defend Affirmative Action et al. (No. 12–682), the Supreme Court upheld a Michigan law that bans public colleges and universities, community colleges and school districts from offering preferential treatment to any individual based on their race, sex, color, ethnicity, or national origin in the context of public employment, public education or public contracting. A narrowly divided Sixth Circuit previously ruled that the law violated the equal protection clause by denying a fair political process to minorities. The Court, divided 6 to 2, with Justices Sotomayor and Ginsberg dissenting and Justice Kagan recusing herself, held that Michigan’s Proposal 2, subsequently enacted as Article I, §26, of the Michigan Constitution, did not violate the equal protection clause because it does not run the risk of causing specific injuries on account of race, as did laws struck down in Hunter v. Erickson, 393 U. S. 385 (1969) and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), holdings that the Sixth Circuit relied upon in making its decision.    The majority declined to comment on the effects of race-conscious policies, noting that the issue before it was not the constitutionality, or the merits, of race-conscious admissions policies in higher education but rather whether, and in what manner, state voters may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions. Continue reading

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