Where There's "At Will"​ There's A Way (To Lose Your Job)

Feb 20, 2017

Last week several employees got a reminder on the meaning of "At Will" employment when they chose to protest the current administration's stance on immigration. A nationwide protest dubbed "A Day Without Immigrants" resulted in workers not showing up for their jobs. While in many cases there were no ramifications for people who walked off the job for the day, stories have begun to pop up from around the country showing that some workers were not so lucky. (Business Owners Stand by Decision to Fire Workers Who Protested.)

For employees living in an "At Will" employment state, an employer may fire you for any reason provided that reason does not run afoul of any specific federal or state laws. While an employee might believe she is engaging in a noble cause by peacefully protesting a law she believes to be wrong, there is no an inherent job protection in that political protest. When taking a stand, an employee has to be aware that it can come at great risk to their livelihood if he doesn't comply with the rules of his workplace regarding providing notice for absences. Failing to do so can result in your placard being replaced with a pink slip.

Will Jimmy John's Have To Start Charging For Smells Now?

Mar 28, 2016

In another example of the reach of the National Labor Relations Board's decisions into non-union environments, the 8th Circuit Court of appeals upheld an NLRB decision to award back pay to fired (non-union) employees.

Jimmy John's, a chain known for it's "free smells" signs, fast delivery, and made to order sandwiches is a national chain. Six employees of a Jimmy John's franchisor in Minnesota complained publicly about the fact that they were not eligible for sick time. The employees did this by posting pictures around the city that contained two Jimmy John's subs, one made by a sick worker and one made by a healthy worker and then asking, "Can't tell the difference?" "That's too bad because Jimmy Johns workers don't get sick days." In response, the company fired the employees. (Three other employees were reprimanded for the incidents but not fired.) The NLRB issued a ruling ordering that the employees be awarded back pay for their terminations, which the 8th Circuit upheld last Friday.

The 8th Circuit decision highlights the sensitive nature of an employee's right to complain about working conditions. Many U.S. employees have the right to engage in concerted protected activity, even in a non-union environment. What this means is that as counter-intuitive as it may sound, an employee may just have the right to complain publicly and bitterly about his or her working conditions and still have job protections depending on the circumstances of that complaint.

Hopefully this decision does not affect the bottom line of Minnesota customers enough to require that the price on smells be increased.

Time Is On My Side...Yes It Is

Mar 23, 2016

If you're an employer, keep the chorus of this Rolling Stones tune in your head. Time is on my side. Yes it is. Because when it comes to time records, they can be your ally if you are sued under the Fair Labor Standards Act.

Yesterday, the U.S. Supreme Court upheld a $2.9 million jury verdict against Tyson Foods in an FLSA collective action for failure to pay overtime. At issue in the litigation was whether Tyson Foods employees should be compensated for the time spent putting on their protective gear before hitting the floor and removing it at the end of a shift. These types of claims are known colloquially as "donning and doffing" cases. As one might expect, Tyson's experts claimed that the donning and doffing process could be done quickly while the Plaintiffs argued that it took a much longer amount of time. Because Tyson did not believe that the Plaintiffs needed to be compensated for the time spent donning and doffing their protective gear, employees did not clock in until after putting on the gear and there was not a mechanism to track how long it actually took each employee to don and doff. As such, an average time was arrived at by the Plaintiffs' expert witnesses and relied on by the jury in reaching it's conclusion. (Even the Plaintiffs' experts acknowledged that there were class members who may not have worked any overtime that might receive compensation under the formula.)

Here, recording and tracking the time spent by employees donning and doffing gear may have resulted in a lower verdict in the case - or perhaps - no case at all. For any employer looking to take a conservative and practical approach, keep track of all that time and those records will be on your side.

Yelp! Did We Just Violate the NLRA?

Feb 25, 2016

An interesting employee advocacy issue is brewing in Silicon Valley. Last week Talia Jane, a writer and Yelp employee posted a witty open letter to Yelp's CEO on Medium. In the letter, Ms. Jane described how Yelp employees could barely survive on their low wages and how she had been unable to afford groceries since beginning her job.

We all know that publicly embarrassing your CEO is typically a good way to get you fired. Unsurprisingly, Talia Jane reports that Yelp did indeed terminate her. But...if Yelp truly fired Ms. Jane because of her open letter could they have violated the law?

The National Labor Relations Board enforces the National Labor Relations Act ("NLRA.") While most people think of the NLRA as applying to union-related activity, Under Section 7 of the NLRA, individuals are protected who engage in "protected concerted activity." Protected concerted activity includes actions taken by a single employee or a group of employees who seek to "improve their pay or working conditions." Based on Talia Jane's open letter, it would seem that she would fall under this category. In addition, the NLRB has specifically found it unlawful for employers to terminate employees for posting criticism of their employers on Facebook. As a result, Yelp would not have a defense that her termination was justified because Ms. Jane aired Yelp's dirty laundry.

Without all of the facts related to Ms. Jane's termination we can't know for sure, but there is certainly a question here as to whether the NLRA has been violated. To employers considering firing an employee who has advocated on behalf of her co-workers, I would advise a cautious approach to ensure compliance with federal regulations.

You Want Me To Sign What?

Jan 15, 2016

The big moment has arrived. You have gone through a series of grinding interviews and you’ve survived. Your potential employer slides a slip of paper with a number on it for more money than you’ve ever made before. You keep your cool – hoping not to let on that you feel like you just won the lottery.
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