Paula Lopez, August 22, 2017

The National Labor Relations Board (NLRB), in its recent decision in Butler Medical Transport LLC, upheld an administrative law judge’s decision that Butler Medical unlawfully terminated an employee for a Facebook post responding to a co-worker’s announcement that she had been terminated.  In the Facebook post, William Norvell advises his former colleague and work partner to “think about getting a lawyer and taking them to court” and to “contact the labor board too.”  In a split decision, the NLRB ruled that Mr. Norvell’s post constituted protected concerted activity because he was offering “advice to his former coworker regarding future action.”

The NLRB also found Mr. Norvell’s termination to be improper because it was based on an unlawfully overbroad social media policy.  Butler’s policy states that “[employees] will refrain from using social networking sights [sic] which could discredit Butler Medical Transport or damages [sic] its image.”   NLRB’s prior decisions have identified two instances where discipline based on an invalid and overbroad company rule can constitute a violation of National Labor Relations Act (NLRA) Section 8 (a)(1): (1) where the employee was disciplined for engaging in protected concerted activity; or (2) the conduct is not concerted but “touches the concerns animating Section 7.”  Under Section 7 of the NLRA, employees have the right to engage in concerted activity.  An employer can avoid liability under an unlawful policy by showing that the employee’s conduct interfered with the employer’s business operations and it disciplined the employee for the interference and not for violating an overbroad rule.  Here, the NLRB found that Norvell’s conduct amounted to protected concerted activity and by Butler already admitting that Norvell’s termination was based on a violation of company policy, it was foreclosed from claiming that interference with business operations was the reason for Norvell’s termination in an effort to avoid liability.

The NLRB, however, did uphold the termination of employee Michael Rice for violating the company’s social media policy by falsely claiming in a Facebook post that that his company vehicle had broken down because his employer failed to pay for maintenance.  A review of the Company’s maintenance records showed that Rice’s vehicle had not broken down on the day he made the post. The NLRB ruled that Butler’s decision to terminate Rice was lawful, even if the policy is overbroad, because his post did not constitute protected activity.  The Board further noted that even if the post could be found to be protected activity, “an otherwise protected communication ‘will lose protection of the Act if maliciously false, i.e., made with knowledge of their falsity or with reckless disregard for their truth or falsity.’”

NLRB Chairman Philip A. Miscimarra dissented to the NLRB’s ruling on the Norvell termination, finding that his Facebook post was not “concerted protected activity” and that his termination was lawful. Notwithstanding, the Butler decision is in line with recent NLRB precedent. However, this trend is expected to change soon.  Since 2015, the NLRB panel has been short of a full five-member panel with Democrats holding a majority.  Earlier this month, Republican nominee, Marvin Kaplan, was confirmed by the Senate along party lines, and another Republican nominee, William Emanuel, is also expected to be confirmed.  As a result, Chairman Miscimarra, who has been the lone dissenter in a series of NLRB decisions applying an expansive view of what type of conduct amounts to protected concerted activity, will likely become the majority voice on the board.  When this happens, employers could see a roll-back on the NLRB’s expansive interpretations of “protected concerted activity.”  Nevertheless, employers should use caution when disciplining employees because of their social media activities.

Nicholas Fortuna, July 17, 2017

Bucking the national trend, Idaho is making it easier for employers to enforce employee non-compete agreements that prevent employees from leaving to go to work for a competitor. The State passed new legislation that provides, if a court finds a key employee or a key independent contractor breaches a non-compete agreement, a rebuttable presumption of irreparable harm to the employer is imposed. The burden of overcoming that presumption shifts to the former employee to show that their employment with a competitor does not adversely affect their former employer’s legitimate business interests.

Nationwide, state lawmakers have been considering whether to make it easier or harder for companies to block workers from jumping to competitors. For the most part, states have concluded that it is better for the local economy to make it easier for employees to move from job to job.

From a business prospective, the impact of strict enforcement of non-competes falls disproportionately on start-ups and high growth companies because it makes it harder for them to recruit workers with relevant experience. Given the choice of locations, such companies will shy away from establishing or moving to jurisdictions where the ability to hire employees is limited.

California does not recognize non-competes and, in part, attributes the rise of Silicon Valley and technology businesses to this policy. Massachusetts, which recognizes non-competes, has a technology sector known as the Route 128 corridor outside Boston that never could reach the economic level of Silicon Valley, despite its strong start in the early 1980s. Economists attribute California’s freedom from the burdens of non-competes, which allows new companies to open and permits employees to move to different jobs, as an important factor in its dominance of the technology industry there.

Boise, Idaho has been looking to be a center for high growth technology companies and startups. The consensus, however, is that the enhanced enforcement of non-competes will be an impediment to developing a thriving technology sector. While older established companies favor strict enforcement because they are trying to protect their position and insulate themselves from the demands of the marketplace, new companies will stay away.

At the federal level, the White House published a report on non-compete contracts in May that concluded that they impose substantial costs on workers, consumers and the economy. The Treasury Department also issued a report criticizing excessive use of non-competes.

An economic study examined the impact of non-competes of people in the state of Michigan who registered at least two patents from 1975 to 2005. In 1985, Michigan reversed a longstanding policy of prohibiting non-compete agreements. The study found that the rate of emigration of inventors from Michigan was twice that of states which prohibited non-competes. The authors concluded that enforcement of non-competes in Michigan after 1985 resulted in a brain drain. Worse, the most talented inventors were found to be the ones most likely to flee.

While proponents of non-competes continue to argue that companies must protect their investment in training and development of employees through the use of such agreements, the evidence suggests that they harm growth, limit opportunities for entrepreneurs, and workers, causing talented people to seek more accommodating jurisdictions.



Paula Lopez, July 10, 2017.

New York City’s recently passed package of bills, referred to as “Fair Work Week” laws, impose significant scheduling and notice requirements on certain businesses operating in New York City.  The laws will go into effect on November 26, 2017.  Employers covered by this law include retail businesses and fast food establishments, which are known for subjecting employees to changing work schedules.

A “fast food establishment” covered by the new law is defined in the same way as a “fast food establishment” subject to New York State’s fast food minimum wage requirements, which is one that:

  • Primarily serves food or drinks, including coffee shops, juice bars, donut shops, and ice cream parlors; and
  • Offers limited service, where customers order and pay before eating, including restaurant with tables but without full table service, and places that only provide take-out service; and
  • Is part of a chain of 30 or more locations, including individually owned establishments associated with a brand that has 30 or more locations nationally.

The new law defines “retail business” as any entity with 20 or more employees that is engaged primarily in the sale of consumer goods at one or more stores within New York City. Full-time, part-time, and temporary employees are counted in calculating the number of employees working for a retail business.  The law defines “consumer goods” as “products that are primarily for personal, household, or family purposes, including but not limited to appliances, clothing, electronics, groceries, and household items.”  Examples of covered retail businesses include clothing stores, shoe stores, department stores, grocers, and retail pharmacies.

New York City’s Department of Consumer Affairs, Office of Labor Policy & Standards (“OLPS”) will be responsible for enforcing the law and has been authorized to impose monetary penalties against employers found to have violated the law.  OLPS will also be publishing posters detailing the rights afforded by the new law and which covered employers are required to conspicuously post in the workplace.  Employers are prohibited from retaliating against employees who assert their rights under the law.  Aggrieved employees have the right to either file a claim with the OLPS or file an action in court against an employer for violations of the law within two years of the alleged violation.

The requirements of the laws differ for fast food establishments and retail business.

Retail Employers

Beginning November 26, 2017, retail businesses are prohibited from scheduling “on-call” shifts for all employees (salaried or non-salaried), and must provide at least 72 hours’ notice of an employee’s work schedule and any change to the schedule. The work schedule must be posted in the workplace 72 hours prior to the earliest scheduled shift.  An employer who makes any changes to the posted schedule must note the changes directly on the posted schedule AND directly notify the affected employees.  This includes sending a copy of the schedule by electronic means, if the parties customarily communicate in such a manner.

The restriction prohibiting an employer from canceling a scheduled shift with less than 72 hours’ notice will not apply in circumstances where the employer cannot operate due to emergencies (natural disasters, fires, floods, public transportation outages, etc.)  An employee can waive the restriction prohibiting an employer from requiring an employee to work a shift with less than 72 hours’ notice by providing written consent. Also, the law does not prevent employers from permitting employees to swap shifts or from granting requests for time off.

The law contains a record-keeping component, which requires employers to maintain and provide an employee, upon request, with a written copy of that employee’s work schedule for any week the employee worked during the prior three years, along with a copy of the most current work schedule for all retail employees at the work location.

Fast Food Employers

The scheduling requirements under the new law apply only to non-salaried fast food employees whose duties include customer service, cooking, food or drink preparation, delivery, security, stocking supplies, cleaning or routine maintenance.  Employers are required to do the following with regard to scheduling:

  • Provide each new hire with a “good faith” estimate of the employee’s work schedule in writing (estimated number of hours expected to work in a week, times expected to work, and location of the work.)  If an employer makes any long-term changes to the employee’s anticipated schedule, it must provide the employee with an updated good faith estimate, before the schedule change goes into effect.
  • An employer must provide each employee with 14 days’ advance notice of the work schedule covering a period of at least 7 days (containing all regular and on-call shifts for an employee).
  • An employer must also conspicuously post the work schedule at the workplace 14 days in advance of the start of the schedule.
  • If a fast food employer makes changes to an employee’s schedule with less than 14 days’ notice, it must pay the employee a schedule change premium (the amount of which varies based on the type of change and amount of notice given), in addition to the employee’s regular pay for shifts worked.

Amount of Premium

-$10.00 for each change made with at least 7 days’ notice where hours or shifts are added or the start and end time of a shift changes but there is no loss of hours.  $15.00 for the same changes if made with less than 7 days’ notice.

-$20.00 for each change made with at least 7 days’ notice where hours are subtracted from a shift or a shift is cancelled.  A $45.00 premium must be paid for the same changes if made with less than 7 days’ notice.

-$75.00 for each change made with less than 24 hours’ notice where hours are removed from a shift or a shift is cancelled.

Exceptions to Employer’s Obligation to Pay Change Premium

-Schedule change is requested by employee in writing or a result of a voluntary shift swap by employees.

-The employer is required to pay the employee overtime for the added shifts/hours.

-The change in schedule is due to an inability of the employer to operate because of an emergency (natural disasters, fires, floods, public transportation outages, etc.)

  • The law prohibits an employer from scheduling an employee to work a closing shift followed by an opening shift where the two shifts are less than 11 hours apart unless the affected employee requests or consents, in writing, to working the two shifts.  Absent the employee’s written consent, an employer who schedules an employee to work a consecutive closing/opening shift must pay a $100 premium to the employee.
  • The law requires a fast food employer to first offer additional work shifts to existing employees at the location where the shifts are available, and then at other locations before hiring new employees to fill the available shifts.  This requirement does not apply if existing employees have already rejected the additional shifts, or an employer would be required to pay the existing employee overtime for the additional shifts.
  • The law also imposes a 3-year record-keeping requirement on the employer with regard to employee work schedules.  Upon request of an employee, an employer must provide an employee with a copy of an employee’s work schedule for any week during the prior 3 years and a copy of the most current version of the work schedule for all fast food employees at the same location.

In addition to the various scheduling requirements, the new law permits all fast food employees (salaried and non-salaried) to make voluntary contributions to a registered not-for-profit organization through payroll deductions.  This imposes a requirement on fast food employers to set up a payroll deduction process to withhold wages and pay them directly to the not-for-profit organization requested by the employee. An employer is not required to honor an employee’s contribution request if it is less than $3.00 (weekly) or $6.00 (bi-weekly).  Also, an employer can request the not-for-profit to reimburse it for the costs associated with the deduction and remittance of the contribution as per DCA’s rules.  In processing an employee’s contribution request, employers must remain cognizant of New York’s Labor Laws and ensure that the requested deductions do not bring the employee’s hourly wage below the minimum wage rate, and may refuse to honor the employee’s contribution request if it would result in a violation of New York’s minimum wage laws.

Employers in the retail and food establishment industry should familiarize themselves with the various requirements imposed by the Fair Work Week laws and contemplate the operational and payroll changes that will need to be implemented to comply with the various requirements.


By: Megan J. Muoio, June 2, 2017

On March 27, 2017, a three-judge panel of the United States Court of Appeals for the Second Circuit decided in favor of the plaintiff in Christiansen v. Omnicom Group, Inc., a case involving the issue of sexual orientation discrimination under Title VII of the Civil Rights Act of 1964. In Christiansen, a gay employee brought a suit against his employer under the sex discrimination provision of Title VII. The employer moved to dismiss the complaint, arguing that sexual orientation discrimination is not discrimination based on sex under federal law.

The Second Circuit disagreed with the employer, but cited different reasoning. The Court held that the discrimination described by the employee, which involved crude drawings of the employee dressed as a woman and comments about his alleged effeminate conduct, was gender stereotyping, a cognizable sex discrimination claim under Title VII. The Court declined to extend Title VII further to hold that sexual orientation discrimination is sex discrimination, citing its precedents in Simonton v. Runyon and Dawson v. Bumble & Bumble. But a strong concurring opinion by two of the three judges on the panel urged the full court to reconsider and overturn their precedents on this issue. Now, the full Second Circuit Court of Appeals has agreed to hear Christiansen, setting up a possible significant shift in Title VII jurisprudence in the Second Circuit.  

Since the three-judge panel decision in Christiansen, the Seventh Circuit Court of Appeals, which covers Illinois, Indiana, and Wisconsin, became the first circuit court to rule that sex discrimination under Title VII includes sexual orientation discrimination. In Hively v. Ivy Tech Community College, a community college instructor brought a suit under Title VII, alleging that she was terminated after 14 years of employment because of her sexual orientation. The Seventh Circuit cited the 2012 Equal Employment Opportunity Commission ruling in Baldwin v. Foxx, which held that sexual orientation discrimination is sex discrimination under Title VII.

The Seventh Circuit in Hively advanced the same two arguments made by the Christiansen concurring justices in finding for the plaintiff. The first is that the employee was discriminated on the basis of sex because she would not have been terminated if she was a man in a relationship with a woman instead of a woman in a relationship with a woman. The second argument is that the employee was discriminated on the basis of sex because of her association with a woman in a relationship.

Employers should monitor the Second Circuit’s consideration and decision in Christiansen over the next few months because of its impact on employment law in the New York region.

Nicholas Fortuna, May 17, 2017

On Monday, the Supreme Court ruled by a surprise 7-1 margin that the Federal Arbitration Act (FAA) preempts states from passing laws to restrict the use of arbitration. The decision came in Kindred Nursing Centers L.P. v. Clark, overturning the Kentucky Supreme Court which held that a general power of attorney does not authorize the holder to enter into arbitration agreements.

The wife and daughter of Joe Wellner and Olive Clark held a power of attorney with broad authority. When Joe and Olive moved to a nursing home operated by Kindred, the holders of the power of attorney completed all necessary paperwork. As part of the process, each signed an arbitration agreement on her relative’s behalf providing claims arising from the relative’s stay at the facility would be resolved through arbitration. After Joe and Olive died, their estates filed wrongful death suits against Kindred. Kindred sought to dismiss the cases arguing that the claims had to be arbitrated. The state courts ruled in favor of the estates and the U.S. Supreme Court reversed and found the FAA prevented the Kentucky state courts from blocking the enforcement of arbitration agreements.

The Court reiterated that an arbitration agreement may be invalidated only on generally accepted contract defenses, such as that the agreement was made under duress, or it lacked consideration. Those defenses, however, may not make it harder to form arbitration agreements than any other contract.

The Supreme Court’s decision was derived from the Court’s landmark ruling in AT&T Mobility LLC v. Concepcion, in which the Court held that the FAA prevents states from interfering with arbitration agreements. Concepcion was decided in a 5-4 decision. The Court has moved to near universal acceptance of the principles stated in Concepcion.  The only dissent in Kindred came from Justice Clarence Thomas, who holds a longstanding view that the FAA does not apply to state courts.

The next big decision in this area will come later this year in three Supreme Court cases that will be consolidated. The National Labor Relations Board (NLRB) has ruled that employers who require workers to sign arbitration agreements waiving their right to file class actions as a condition of employment violate workers’ collective action rights under the National Labor Relations Act (NLRA), (known as the D.R. Horton rule). This conflicts with the FAA, which holds arbitration agreements valid unless the contract underlying them is illegal. There is a split between the circuits over the viability of the NLRB’s stance. The Seventh and Ninth Circuits have found the NLRA’s guarantee of worker’s right to engage in concerted activity supersedes the FAA, rendering an agreement to arbitrate which impedes on such rights unenforceable. The Fifth Circuit has said the NLRA does not override the dictates of the FAA.

The interaction between the FAA, a federal law, and state law – Kindred – will not necessarily indicate how the Court will decide the interaction of the FAA and the NLRA, both federal laws.

In the meantime, the Court’s decision in Kindred is considered a victory for employers.