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