Workplace Recording Bans May Violated Federal Law

The 5th Circuit Court of Appeals recently became the second federal appeals court this year to hold that an employer’s rule prohibiting recording in the workplace violates the National Labor Relations Act (NLRA). In a July 25 decision, the court agreed with the National Labor Relations Board that such a rule could discourage unionizing or other protected activity. This case is yet another reminder that employers need to tread carefully when it comes to personnel policies restricting audio and video recording (T-Mobile USA, Incorporated v. NLRB).  See the T-Mobile decision here: http://www.ca5.uscourts.gov/opinions/pub/16/16-60284-CV0.pdf.

 

OSHA Issues New Whistleblower Complaint Form

OSHA administers more than twenty whistleblower protection laws, including Section 11(c) of the Occupational Safety and Health (OSH) Act, which prohibits retaliation against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Act. Each law has a filing deadline, varying from 30 days to 180 days, which starts when the retaliatory action occurs.

A whistleblower complaint must allege four key elements:

  • The employee engaged in activity protected by the whistleblower protection law(s) (such as reporting a violation of law);
  • The employer knew about, or suspected, that the employee engaged in the protected activity;
  • The employer took an adverse action against the employee;
  • The employee’s protected activity motivated or contributed to the adverse action.

OSHA just released a revised online whistleblower complaint form here: https://www.osha.gov/whistleblower/WBComplaint.html

 

Massachusetts Court Rules Against Employer in Medical Marijuana Case

The Massachusetts Supreme Judicial Court has ruled that a newly-hired employee who was terminated because she tested positive for marijuana use can sue her former employer for handicap discrimination. Christina Barbuto suffers from Crohn’s disease and her physician had provided her with a written certification allowing her to use marijuana for medicinal purposes. Medical and recreational marijuana use is legal in Massachusetts in limited amounts.

The court rejected the employer’s argument that it could not accommodate the plaintiff because her continued use of medical marijuana is a federal crime. It also dismissed the employer’s contention that it owed the plaintiff no obligation to participate in an interactive process to identify a reasonable accommodation before firing her.  See case here http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/12226.pdf

9th Circuit Holds Mortgage Underwriters are NOT Exempt from Overtime Pay

Mortgage underwriters do not qualify for the Fair Labor Standards Act’s administrative exemption because they are more appropriately characterized as “production” employees, according to the U.S. Court of Appeals for the Ninth Circuit.  See the recent decision here http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/05/15-16758.pdf

Massachusetts Court rules use of Medical Marijuana may be Protected Under Disability Law

On July 17, 2017, the Massachusetts Supreme Judicial Court unanimously held that an employee may pursue a disability discrimination claim under state law against her former employer for failing to accommodate the employee’s use of medical marijuana.  This is the first decision by any state’s highest court to recognize a duty to accommodate medical marijuana users at work.  See decision here http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/12226.pdf

Hawaii State DOE Misconduct Investigations: 6 Leave DOE

The State of Hawaii Department of Education closed out 11 employee misconduct investigations during the past three months, resulting in five terminations and one resignation in lieu of termination, according to data shared Tuesday with the state school board.  Please see article here http://www.staradvertiser.com/2017/07/19/hawaii-news/doe-misconduct-investigations-result-in-6-leaving/

9th Circuit Rules Salary History may help Determine Pay without Violating EPA

The 9th Circuit Court of Appeals has ruled that an employer does not necessarily violate the Equal Pay Act when it uses an applicant’s salary history to determine the individual’s pay, even if it results in a female employee earning less than male employees for doing the same work.   The Court’s decision is here:  Rizo v. Yovino

“Vulgar and inappropriate” Facebook Post was Protected Speech

In a decision dated April 21, 2017, the Second Circuit upheld the National Labor Relations Board’s (NLRB) finding that an employee’s Facebook post, although “vulgar and inappropriate,” did  not exceed the National Labor Relations Act’s (NLRA) protection.  The expletive laden post occurred two days before a union election.  The Court agreed with the NLRB that the post constituted protected activity and that the termination of the employee constituted unlawful retaliation.  See National Labor Relations Board v. Pier Sixty, LLC, No. 15-1841 (April 21, 2017).

Trump Mulls Breaking Up 9th Circuit

President Donald Trump is once again taking aim at a federal appeals court district that covers Western states, including Hawaii, saying he is considering breaking up a circuit that is a longtime target of Republicans and is where his first travel ban was halted.

Yet it would take congressional action to break up the 9th U.S. Circuit Court of Appeals. Republicans have introduced bills this year to do just that.  See Honolulu Star Advertiser article here.