NLRB Improves Backpay Formula for Unlawfully Terminated Workers

In a recent 3-1 decision, the National Labor Relations Board ("NLRB") modified its backpay formula to make unlawfully terminated workers whole. In King Soopers, the NLRB found that its previous formula was inadequate to fully compensate workers who were unlawfully terminated. Specifically, the Board found search-for-work expenses and interim work expenses should be treated as a separate component of the backpay award, rather than an offset against interim wages.

When an employee is terminated for union activities, he or she is required to find and maintain interim employment to mitigate damages while the unfair labor practice case is decided. The pay the discriminatee receives from interim employment is deducted from the backpay award. However, the search for interim employment, and sometimes the interim employment itself, often causes the discriminatee to endure additional financial hardship. This is especially true if the discriminatee is forced to relocate, commute longer distances, or pay for additional training for the interim employment.

In the past, the NLRB treated search-for-work expenses and interim employment expenses as offsets to interim earnings. This prevented discriminatees who were unable to find interim employment to receive any compensation for search-for-work expenses. Similarly, discriminatees whose interim job wages were less than their total expenses were not compensated for the amount of expenses that exceeded their interim wages.

The Board now treats search-for-work expenses and interim work expenses as a separate component of the backpay award. The purpose of make-whole relief is to restore, as nearly as possible, that which the discriminatee would have earned if he or she had not been unlawfully terminated, and to deter future unfair labor practices. The Board found that this new formula better serves both purposes. As a result, discriminatees who prevail on their unfair labor practices will be fully compensated for the financial hardships caused by their unlawful terminations.

The Public Employment Relations Board currently treats search-for-work expenses and interim employment expenses as offsets to interim earnings. But PERB will likely follow suit and treat search-for-work expenses and interim job expenses as a separate component of the backpay award to ensure discriminatees are fully compensated.

Media Policies Can't Impede Protected Activity

An administrative law judge (ALJ) found the Chipotle restaurant chain violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it asked an employee, James Kennedy, to delete his Twitter comments and stop circulating a petition complaining employees were not being given their mandated breaks. (Chipotle Services LLC dba Chipotle Mexican Grill (March 14, 2016) Cases 04-CA-147314,04-CA-149551.)

In response to a customer who had tweeted “Free chipotle is the best thanks,” Kennedy said, “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl worth really?” Chipotle’s national social media strategist saw the tweet and emailed the regional manager of the Haverford, Pennsylvania location. The manager asked Kennedy to take the tweets down because they violated Chipotle’s “social media policy.”  Kennedy complied. The ALJ found the social media policy’s bans on spreading "incomplete, confidential, or inaccurate information" and "making disparaging, false, or misleading statements" were unlawful.  Likewise, asking Kennedy to delete the tweets was unlawful interference with protected activity.

When Kennedy began circulating the petition, his manager, Jennifer Cruz, asked him to speak with her in the office. According to Cruz, another employee expressed concern that she would be in trouble for not taking her breaks. Cruz told Kennedy to stop circulating the petition. Kennedy refused, saying Cruz would have to fire him to get him to stop. Cruz told him, “Okay, just leave.” According to Cruz, she did not decide to fire Kennedy until the next day because she was “fearful that he might hurt her” because Kennedy had PTSD, punched boxes when breaking them down for the garbage, and he declined to help Cruz replace a lightbulb while he was on break. The ALJ stated Cruz’s justifications “would be laughable” “if it weren’t such blatant disability discrimination.” The ALJ determined Chipotle fired Kennedy due to his refusal to cease engaging in protected concerted activity. 

Kennedy’s tweets and petition addressed matters of concern for all Chipotle employees, not just himself. Under the NLRA, an employee is not limited to only seeking support from other employees, but can also seek assistance and sympathy from the public at large. 

PERB: Blanket Restrictions on Communications Interfere with Protected Rights

The Public Employment Relations Board's recent decision in Los Angeles Community College District (2014) PERB Decision No. 2404 held blanket restrictions on communications may interfere with employees' right to engage in concerted activity. This long awaited decision brings PERB alongside National Labor Relations Board precedent holding "blanket" instructions to employees to maintain confidentiality during a workplace investigation may interfere with protected activities if they are overbroad and the employer lacks a proper business justification.

In Los Angeles Community College District, a professor disagreed with the District reducing his work hours and salary. He made statements to students and handed out materials criticizing District administration. The District placed the professor on administrative leave pending a fitness for duty evaluation and issued the following admonishment: "You are hereby directed not to contact any members of the faculty, staff, or students."

PERB ruled the directive interfered with the professor's protected activities. PERB found the District's directive was overbroad and contained no qualifiers limiting its scope. Although the directive did not explicitly restrict protected rights, PERB found "the directive not to contact faculty, staff or students would reasonably be construed to prohibit the employee from participating in a variety of protected activities including discussing working conditions with his coworkers or union, or initiating a grievance." In addition, the District lacked a business justification for the directive.

This case law may have practical application to public safety professionals subject to personnel investigations because many agencies issue admonish them from communicating with coworkers during the investigation. Employee organizations should insist that internal affairs confidentiality directives are narrowly tailored, for example, limited to witnesses who have not been interviewed. Overbroad gag orders will likely give rise to an unfair labor practice.