Category Archives: Litigation

Employer Violated NLRA By Firing Employee For Discussing Salaries

A Texas engineering firm landed itself in hot water with the National Labor Relations Board after firing an employee for discussing salaries with her co-workers.

The Administrative Law Judge’s decision, which the NLRB affirmed, ruled that the employer’s policy prohibiting employees from discussing wages with their co-workers violated employees’ rights to discuss their working conditions under the National Labor Relations Act. It’s crucial to remember that this provision of the NLRA applies to non-unionized workplaces, a fact that is often overlooked because the NLRA deals so extensively with labor unions.


The company wound up paying the employee over $100,000 in back pay, 401(k) contributions, medical expenses, and interest.

The decision noted that:

the [National Labor Relations] Board has long held that an employer cannot lawfully prohibit employees from discussing matters such as their pay raises, rates of pay, and perceived inequities.

The ruling also confirmed that, even without enforcing it, simply having such a policy could violate the NLRA if it reasonably tends to chill employees’ NLRA-protected rights. Where, as was the case here, employers carry out the policy and fire someone, they most certainly violate the NLRA and expose themselves to a claim before the NLRB.

With the NLRB’s renewed efforts to shape employment law beyond the agency’s historical scope, eliminating policies like this one is an easy check-off any employer can make to stay out of trouble.


You Can Take It With You When You Go

Your list of Twitter followers, that is.

New York Times editor Jim Roberts, who had a list of more than 75,000 Twitter followers, announced he was taking them with him upon his early-retirement buyout. While he’ll likely have to change his handle to remove the NYT reference, he’s apparently free to keep his followers.

CBS Moneywatch, in turn, notes some good points to make sure your business’s goodwill doesn’t go out the door with your employees. The biggest lesson: have a plan, in writing, ahead of time. Also, try to keep the personal and the business aspects separated.

The best-case scenario is a well-drafted social media policy that employees sign, specifically detailing what happens to various social media accounts during, and after, employment.

Federal Court Dismisses EEOC’s Credit-Check Discrimination Case

An Ohio federal court dealt the EEOC a major blow by dismissing its case against Kaplan Higher Education last week. The case had been the most notable one so far advancing the EEOC’s theory of “disparate impact” discrimination based on Kaplan’s use of credit reports in hiring.

The court found largely technical problems with the EEOC’s potential evidence of discrimination and its proposed expert testimony, so it didn’t scrap the theory writ large. Still, it may cause the EEOC to hesitate when considering similar lawsuits unless there is clear statistical evidence that applicants’ credit backgrounds caused a disparate impact on minorities without any underlying business purpose.

Remember that using credit reports is not illegal; it just has the potential to be discriminatory if it’s not based on business necessity and arbitrarily screeens out minorities.

EEOC Claims Steady, Litigation Slows

The EEOC released claims and litigation data for its most recent year. The result: discriminations charges trended slightly lower, while litigation nose-dived.

The agency fielded nearly 100,000 complaints for retaliation and discrimination. The number was down slightly from 2011. However, the EEOC only filed 122 lawsuits during the same time, less than haf the 2011 figure. Its total recovery in litigation was also halved, bringing in only $44.2 million, compared with $91 million the year before.

NLRB Challenges Begin

After the D.C. Circuit Court of Appeals’ surprising ruling last week, several aggrieved employers have argued that NLRB decisions against them are invalid.

At least two employers cited the D.C. Circuit case this week in filings with other federal appeals courts. As it’s been over a year since the NLRB started issuing arguably invalid decisions, there is plenty of room for employers to argue that any NLRB action against them is void. Those decisions could include many of the recent issues addressing social media use by employees.

Concrete resolution will almost certainly come in some form, whether in an appeal or rehearing of the entire D.C. Circuit Court. Until then, however, the NLRB’s decisions will remain open to attack.

Obama NLRB Appointments Unconstitutional

In a surprisising opinion released Friday, the federal D.C. Circuit Court of Appeals ruled that three of President Obama’s appointments to the National Labor Relations Board violated the Constitution. The appeals court held that Obama made the recess appointments when Congress wasn’t actually in “recess.”

The ruling creates a potentially messy situation, effectively invalidating every decision the NLRB has reached since January 2012. It would also completely stop current NLRB business as it technically can’t act because it lacks three duly appointed members.

The government has vowed to appeal the case, which has far broader implications in recess appointments, to the U.S. Supreme Court.

Fired Teacher Sues Claiming Fear of Kids

In other Ohio news this week, a fired teacher has sued her former school district for violating the Americans with Disabilities Act based on her fear of children.

The teacher, who taught high-school Spanish and French, was transferred to a middle school after the school district revamped the curriculum. She claimed the transfer, and general presence of middle-school students, caused her anxiety and blood pressure to soar to dangerous levels because of her pedophobia, or fear of young children. She sought a transfer back to the high school, but ended up retiring.

Stay tuned for the outcome.