United States: US Employment Litigation Round-Up For March 2016
A Review Of Key Cases And New Laws Affecting Employers

NLRB Voids Anti-Unionization Vote Based on Employer's Overly Restrictive Email Policy

Decision: On February 17, 2016, a divided panel of the National Labor Relations Board (NLRB) determined that an employer's policy permitting employees to use the employer's work email system for personal use, but prohibiting them from using the email system to express personal opinions, was unlawfully overbroad. Accordingly, the panel voted to set aside the results of a representation election in which employees of the Blommer Chocolate Company of California voted against unionization by an 18 to 50 margin. The panel found  that Blommer engaged in "objectionable conduct" by maintaining the email rule (and two other overbroad rules) in its employee handbook.

The Blommer panel relied on the NLRB's landmark 2014 decision in Purple Communications, Inc., which held that an employer who allows its employees to use its workplace email system for personal use must presumably permit protected, union-related communications. Although Purple Communications still allows the employer to regulate its email system for "legitimate management reasons," such as maintaining production or discipline, it did not describe the bounds of this exception. Notably also, the Blommer panel's opinion did not indicate that it or the underlying hearing officer considered any evidence that the email rule was enforced or that it actually interfered with any potential union activity.

Impact: It remains to be seen whether the NLRB will further define the contours of a permissible workplace email policy after Purple Communications. Following Blommer, employers should review their employee handbook and workplace policies for potentially overbroad policies that could impermissibly chill protected employee communications.

EEOC Proposes New Affirmative Action Rule for Employees with Disabilities

Proposed Rule: On February 24, 2016, the Equal Employment Opportunity Commission (EEOC) published a proposed rule to clarify the elements that federal agencies must include in the affirmative action plans required for the employment of people with disabilities under the Rehabilitation Act. Some of the requirements outlined in the rule codify obligations that management directives and executive orders have already put in place. Other requirements are new, including one that federal agencies set a 12 percent goal for the employment of individuals with disabilities and a 2 percent goal for people with severe disabilities or those disabilities upon which the EEOC has placed special emphasis in hiring because they pose the greatest barriers to employment, such as paralysis or cerebral palsy. The new rule would also require agencies to provide personal assistance services, such as help with eating or using the restroom while at work, to those employees that need them because of a disability. There is a 60-day public comment period following the publication of the rule.

Impact: The new numerical requirements are not drastically different from the actual, current rates. But the proposed rule is a departure from the current policy that allows agencies to set their own internal goals for the number of employees with disabilities. While not providing a specific timeline for compliance, the proposed rule would require agencies to submit a plan outlining steps to gradually increase the number of employees with disabilities.

Administrative Law Judge Finds Chipotle in Violation of the NLRA by Asking a Former Employee to Delete Tweets about Working Conditions

Decision: On March 14, 2016, a NLRB Administrative Law Judge (ALJ) held in Chipotle Services LLC, 04-CA-147314, that Chipotle violated the National Labor Relations Act (NLRA) when it asked an employee to remove several Twitter posts complaining about working conditions. The employee had tweeted about having to come in to work during snowstorms and also replied to a customer's tweet about receiving free food with the comment "nothing is free, only cheap #labor, Crew members only make $8.50hr how much is that steak bowl really?" After Chipotle's national social media strategist saw the tweets, a regional manager asked the employee to take them down in accordance with an outdated version of the company's social media policy. The ALJ concluded that Chipotle violated the NLRA, because the outdated policy was unlawfully overbroad and that asking the employee to delete his tweets infringed on his right to engage in protected concerted activity.

Impact: Chipotle Services LLC is another reminder that the NLRB continues to focus on social media and is targeting all employers (union and nonunion alike) whose policies discourage employees from discussing working conditions. The decision is also noteworthy because the former employee's tweets were deemed protected concerted activity even though: they did not relate to any ongoing dispute with Chipotle management; the employee did not discuss his complaints with any other employees; and one of the comments was a direct response to a customer's tweet. According to the ALJ, the tweets "had the purpose of educating the public and creating sympathy and support" for the employee and his coworkers and, therefore, were "truly group complaints." In addition, the ALJ emphasized that asking the employee to take down the tweets—even without any threat of discipline—violated the NLRA because the request came from a manager and was an "implicit prohibition" against future tweets about the terms and conditions of employment.

Originally published 7 April 2016

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