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. 

NLRB: Employees May Use Employer Email on Nonworking Time

On December 11, 2014, the National Labor Relations Board issued a greatly anticipated decision in Purple Communications , Inc. v. Communications Workers of America, AFL-CIO. The Board held employees may use employer email systems for statutorily protected communications on nonworking time, unless the employer shows a business justification for prohibiting it. In reaching this decision, the Board overruled prior case law to respond to technological changes in society.

The Board overruled its 2007 decision in Register Guard, finding it "was clearly incorrect." Register Guard held an employer may completely prohibit employees from using the employer's email system for concerted activities protected under Section 7 of the National Labor Relations Act. Register Guard allowed employers to completely ban employees from using the employers email system for these purposes without demonstrating any business justification, so long as the ban was not applied discriminatorily.

Purple Communications overruled Register Guard, finding it undervalued employees' core Section 7 right to communicate in the workplace about their terms and conditions of employment, and granted too much weight to employers' property right. The Board noted statistics showing email has become the most pervasive form of communication in the business world. The Board also discussed the Supreme Court's decision in City of Ontario, California v. Quon, which found some personal use of employer email is common and usually accepted by employers.

The Board stressed its holding in Purple Communications is "carefully limited." The holding only applies to employees who have already been granted access to the employer's email system and does not require employers to provide such access. Also, an employer may justify a total ban on nonwork use of email by showing the ban is necessary to maintain production or discipline.  Employers may also impose uniform and consistent controls over its email system to the extent necessary to maintain production and discipline. The holding is limited to email access, and does not extend to other forms of electronic communication. Although a small step, this decision shows the Board's willingness to adapt to ever-increasing technological changes.

This decision is about access to employers' email systems, not confidentiality of those emails.  It is possible some employers will read emails sent through their email systems and labor leaders should use caution about what they send on an employers' email system.

Court of Appeal Rules Overtime is Defined By Collective Bargaining Agreement

The California Court of Appeal issued an opinion in Vranish v. Exxon Mobil Corporation. The Court ruled collective bargaining agreements (CBA) meeting certain requirements define overtime for covered employees, not the California Labor Code.

In Vranish, Exxon Mobil employees regularly worked 12-hour shifts. They worked 7 consecutive days followed by 7 days off. The employees were represented by a labor organization and had a CBA. Under the CBA, employees only received overtime compensation if they worked more than 12-hours in a workday, or more than 40 hours in a workweek. However, Labor Code section 510 states employees must receive overtime pay if they work more than 8 hours in a single day.

The employees filed suit to recover overtime pay for regularly working more than 8 hours in a workday. But the Court ruled the Labor Code’s definition did not apply to the employees. Labor Code section 514 states the Labor Code’s definition of overtime does not apply to employees covered by a valid CBA meeting certain requirements. Since the CBA in this case met all of the requirements under section 514, the CBA defined overtime rather than the Labor Code.

Court Rules NLRB Appointments Unlawful, Calls Into Question 200 Decisions

In Noel Canning v. National Labor Relations Board (D.C. Cir., Jan. 25, 2013, 12-1115) 2013 WL 276024, the Court of Appeals for the D.C. Circuit ruled President Obama's January 4, 2012 recess appointments to the National Labor Relations Board were unconstitutional.   As a result, the NLRB's decisions since that time are now being called into question and may be unenforceable.  

The Recess Appointments Clause is part of the federal Constitution.  It says, "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."  This case was about what counts as "the Recess of the Senate" and what does not, with the President arguing the Senate was in recess on January 4, 2012 and the petitioner arguing it was not.  Ultimately, the Court decided the Senate was not recess, reasoning that "The Recess" means only breaks between official sessions of Congress and not other breaks during a session.  As a result, the Court found the Senate was not in recess on January 4, 2012 and the President's appointments to NLRB are therefore invalid.

The affects of the decision on unclear.  The NLRB's official position is that the ruling only applies in one case.  However, others believe it calls into question most of the NLRB's 2012 decisions, including several involving social media.

NLRB Issues New Report on Social Media Cases

The National Labor Relations Board issued a new report yesterday on its cases involving employees' use of social media and corresponding employer policies and practices.  The report notes many employer policies about social media use by employees are unlawful because they punish employees for engaging in protected concerted activity.  The report follows up on an August 18, 2011 report surveying similar cases.  The NLRB oversees most private-sector labor relations in the United States.  While public-sector labor relations in California are administered by the the Public Employment Relations Board, an independent state agency, PERB often looks to NLRB precedent in making decisions.

NLRB: Facebook Post Was Protected Activity

In Hispanics United of Buffalo, Inc. (September 2, 2011) NLRB Case No. 3-CA-27872, an administrative law judge of the National Labor Relations Board ruled a New York nonprofit violated federal law by firing five employees who posted comments on Facebook about working conditions, including workload and staffing.

An employee of the nonprofit brought the case after he was fired for comments he posted on Facebook. The employee claimed some employees did not do enough to help their clients, drawing responses from other employees about job performance, working conditions and staffing levels. Some of the comments supported the initial post and some disagreed. The nonprofit later fired five employees involved, claiming their posts harassed another employee.

The judge determined firing employees for these comments violated the National Labor Relations Act. The relevant part of the NLRA gives employees “…form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The judge noted “[e]mployees have a protected right to discuss matters affecting their employment amongst themselves.  Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected…” The judge went on to hold that protected applies equally to Facebook posts as it would to a workplace conversation around the water cooler.

The judge found there was no evidence the employees harassed anyone with their posts and noted “[the employer] was looking for an excuse to reduce its workforce and seized upon the Facebook posts as an excuse for doing so.”

Ultimately, the judge ordered the nonprofit to reinstate the employees and pay them back pay plus compound interest.