Fenwick Employment Brief - August 16, 2011


In this issue: NLRB Decides Non-Unionized Employees' Disparaging Statements About Employer, Made on Public Television, Qualify for Protection Under NLRB; In Two Recent Decisions, California Appellate Courts Refuse to Honor Employment Arbitration Agreements; Plaintiff Whose Sales Territories Were Reduced Upon Pregnancy Announcement Survives Summary Judgment in Retaliation Case Against Employer; California Appellate Court Denies “Split Shift” Pay to Employees Working Consecutive Overnight Shifts; California District Court Issues $5 Million Verdict in Retaliation Case; and Court Finds for EEOC in Abercrombie & Fitch Hijab Suit.

Excerpt from 'NLRB Decides...':

The National Labor Relations Board (“NLRB”) ruled last month that an employer’s termination of non-unionized employees who had appeared on a television newscast wearing their uniforms while making disparaging statements about the employer violated the National Labor Relations Act (“NLRA”). The NLRB held that the employees’ behavior constituted protected concerted activity within the meaning of Section 7 of the NLRA because the statements were related to a work dispute and were not disloyal, reckless or maliciously untrue.

The employer in this case, MasTec, Inc., installs and maintains satellite television equipment for DirecTV in Florida. MasTec service technicians were allegedly encouraged to persuade customers to permit the DirecTV satellite receivers to be connected to the customers’ home telephone lines. Although a telephone connection is not required for the system to function, it does provide customers with additional features and assists DirecTV in making programming decisions by providing a record of what customers are viewing. Even though there was often no extra charge for the telephone line connection, many customers resisted the installation for a variety of reasons.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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