The Fourth Circuit Court of Appeals recently decided NLRB v. White Oak Manor, a case involving an employee’s protected concerted activity, ruling in favor of the NLRB who sought to enforce an order in favor of the employee.  The employee, who was reprimanded for wearing a hat during work in violation of the company dress code, spoke with other employees to gain support for her cause and eventually complained to management about unequal enforcement of the company dress code.  The employee took pictures of other employees who were violating the dress code at work, showing tattoos and wearing hats.  The employee enlisted other employees to help her document dress code violations as well.  The employee was subsequently terminated.  Management stated specifically that she had taken pictures of a particular employee without prior permission and in doing so she violated the company’s policy forbidding the misuse of an employee’s property.  Defendant White Oak Manor contended that the employee had acted in her own self interest by complaining about the enforcement of the dress code policy.

The Court agreed with the NLRB in their assertion that the company had violated the National Labor Relations Act because the employee had talked to other employees about the policy and gathered evidence in support of her attempt to change the enforcement of the policy.  Thus the employee was participating in protected concerted activity in an attempt to achieve equal enforcement of the policy.  Equal enforcement of this policy would benefit all employees and the employee actively pursued coworkers support and help in changing the policy.  The Court thus reached the common-sense conclusion that the employee’s actions did meet the standard in the NLRA for protected concerted activity.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Concerted Activity, Fourth Circuit, Labor and Employment, NLRA, NLRB, Retaliation

Two recent positive developments to report.  First, breaking new ground, the National Labor Relations Board (NLRB) has charged a company with illegally firing an employee after she criticized her supervisor on her Facebook page.  The NLRB’s press release is here.  Coverage here.

Under Section 7 of the National Labor Relations Act, all employees — even those not represented by a union — are protected from retaliation when they engage in “protected concerted activity.”  Although social networking is new, the NLRB has taken the commonsense view that employees have the right to jointly criticize their employer through Facebook, just as they would over the water cooler.

Second, the large financial reform law (Dodd-Frank) passed earlier this year includes some expanded provisions that support whistle-blowers in the financial industry.  The SEC has now issued rules further defining this program.  Coverage is here.  Note also that the Dodd-Frank Act contains protections against retaliation toward whistle-blowers.

Categories: Legislative Action Tags: Concerted Activity, Dodd-Frank, Facebook, Financial Services, Labor and Employment, NLRB, Retaliation, SEC, Social Networking, Whistle-blowing

The Fourth Circuit has published opinions in three labor and employment cases in recent weeks.  The first case, Sepulveda v. Allen Family Foods, Inc., concerned a Fair Labor Standards Act (FLSA) collective action that was brought on behalf of a class of current and former employees of a chicken processing plant.  The employees claimed, among other things, that the company had violated the FLSA by not compensating them for time spent donning and doffing their protective gear before and after their shifts.  There is a specific exception in FLSA for cases regarding compensable time for “changing clothes” when the employees are represented by a union that has negotiated a collective bargaining unit.  The Court held that putting on and taking off protecting gear was “changing clothes,” so the exception applied because these plaintiffs had a union, and so judgment was rightly granted to the employer.

Read more…

Categories: Judicial Decisions Tags: Case Commentary, Collective Action, Concerted Activity, FLSA, Fourth Circuit, Labor and Employment, NLRB, Retaliation, Sarbanes-Oxley Act, Union, Wage and Hour

Michael Okun has written an article, entitled In Concert: A Beginner’s Guide to Labor and Employment Law’s Old and Well-Kept Secret, for an issue of Trial Briefs, the publication of the North Carolina Advocates for Justice. The article discusses the NLRA’s protection for workers who act “in concert” regarding workplace issues.

Summary: The right to act “in concert” is the “principal source of legal protection for employees who engage in workplace protests.” This article attempts to provide a basic understanding of the substantive and procedural law surrounding the law.  The first of six sections provides a brief history and overview of the Section 7 right found in the NLRA.  The second explains the requirements of the three elements necessary to claim the right.  The third section describes how to prove causation between activity protected by the statute and retaliatory action by an employer.  The fourth section explains briefly the categories of employers and employees who are not covered by the statute.  The fifth section explains how to enforce an employee’s rights under the Act.  The final section describes the three best concerts this author has attended.

Categories: News of the Firm Tags: Articles, Concerted Activity, Labor and Employment, Michael Okun, NCAJ, NLRA, Union