News & Analysis as of

Protected Activity

The NLRB/EEOC Landmine – When Does Offensive Speech Amount to Protected Activity?

Employers need to be on the lookout for instances of offensive employee speech, which may put them between a rock and a hard place as they navigate potential claims under either anti-discrimination laws or federal labor laws....more

You CAN Ask Your Employees To Be Happy! Federal Appeals Court Reins In National Labor Relations Board (NLRB)

by SmithAmundsen LLC on

Much has been written and discussed about the National Labor Relations Board’s (NLRB) attack on handbook policies over the past several years. The NLRB has found what many consider to be run-of-the-mill, standard policies...more

Racist Picket Conduct Protected

by Sherman & Howard L.L.C. on

The NLRB holds – famously now – that sexist and racist conduct on a picket line is protected from adverse action unless the conduct is also violent and coercive. Despite a shot across its bow in Consolidated Communications,...more

Two Employees, Social Media, An Unlawful Policy ... What Could Possibly Go Wrong?

The advent of social media resulted in a feverish effort by the NLRB to keep up with new technology. In reality, the legal standard for evaluating whether conduct is protected concerted activity did not change. Rather, all...more

FCA Deeper Dive: FCA Retaliation Claims

by Bass, Berry & Sims PLC on

The FCA provides protections for whistleblowers in connection with their whistleblowing activities. To establish that an employer retaliated against an employee in violation of 31 U.S.C. § 3730(h), an employee must...more

No Union Protection for Employees “Sick” Over No Paid Absences

Can employees protest a company sick leave policy with an internet meme that suggests the company’s food is not safe? Not according to a recent Eighth Circuit decision. MikLin (doing business as Jimmy John’s in Minnesota)...more

Long-term loss of earnings and whistleblowing

by Dentons on

In Small v. Shrewsbury and Telford Hospitals NHS Trust the Court of Appeal has held that where a claimant's employment has been terminated due to a protected disclosure the tribunal can award compensation for long-term loss...more

NLRB’s “Biggest Idiot” Test Benchslapped

by Sherman & Howard L.L.C. on

The NLRB analyzes employer policies to see if the policies “chill” employees’ rights to engage in concerted protected activity under the NLRA. The NLRB says it applies a “reasonable person” test, which asks “would a...more

Court Rules Request for Religious Accommodation Is Not “Protected Activity” for Title VII Retaliation

by Seyfarth Shaw LLP on

Seyfarth Synopsis: A recent decision by a federal district court in Minnesota held that a religious accommodation request is not “protected activity” under Title VII. In defending retaliation litigation, employers should...more

Grudges Are Forever

by Sherman & Howard L.L.C. on

Even a gap of five years between protected conduct and an adverse action isn’t enough to show the two are not connected. In Baines v. Walgreen Co., No. 16-3335 (7th Cir. July 12, 2017), the plaintiff had worked for the...more

Attack Falsely Alleging Sandwich Maker Engaged In Unhealthy Practices Not Protected Activity Concludes Appeals Court, Overruling...

Labor disputes are passionate affairs. Workplace grievances elicit all sorts of strident behavior. When the dispute involves a group of employees, the effect can become magnified. The exact point at which the stridency of an...more

CPA Can’t be a Whistleblower for Non-Public Entities

Reyher v. Grant Thornton, LLP analyzed whether an employee of a CPA firm is protected by the anti-retaliation provisions of the Dodd-Frank Act for lodging complaints with an employer about suspected illegal activity regarding...more

Second Circuit Holds Pro-Union Sentiment Outweighs Impropriety of Profanity-Laden Rant Against Supervisor, His Mother, and “His...

by Dorsey & Whitney LLP on

Use of profanity by employees, whether in the workplace, outside the workplace, or on social media, presents difficult legal issues for the employer, as highlighted by a recent Second Circuit Court of Appeals decision...more

Executive Labor Summary - May / June 2017

NEWS & ANALYSIS - Trump nominations on track to fill open seats on the NLRB - After a slow start, President Trump is taking the steps to fill more slots at various agencies, including the National Labor Relations Board. On...more

Second Circuit Upholds NLRB Ruling That Employer’s “No Recording” Policy Violated National Labor Relations Act

by McCarter & English, LLP on

Employers need to be mindful about policies prohibiting employees from recording or videotaping in the workplace, as such rules, if not drafted carefully, may run afoul of the National Labor Relations Act (the Act). This...more

The NLRB is Still in Business – Watch Your Handbooks

by Baker Donelson on

While employers wait to see if the Trump Administration will produce a kinder, gentler National Labor Relations Board (NLRB), the NLRB is still in the business of punishing employers for workplace policies that ostensibly...more

Second Circuit Upholds NLRB Order Finding Grocer’s No Recording Policy Unlawful

by McGuireWoods LLP on

On June 1, the Second Circuit issued a summary order in Whole Foods Market Group, Inc. v. NLRB, affirming the National Labor Relations Board’s order in Whole Foods Market, Inc., 363 NLRB No. 87 (2015), where the Board found...more

Union Adherent’s Antics Not Protected By Act, NLRB Rules

The NLRB recently issued a rare decision completely dismissing all allegations against an employer; rarer still because it was unanimous. In Brooke Glen Behavioral Hospital, 365 NLRB No. 79 (May 15, 2017) the NLRB was...more

Second Circuit Weighs in on Social Media, Profanity, and the NLRA

by PretiFlaherty on

One of the fundamental protections of the National Labor Relations Act is that employers may not discipline employees for engaging in concerted activities relating to the terms and conditions of their employment. Whether an...more

Expletive-Laced Facebook Rant Protected Under Federal Labor Law

Many people have fanaticized about telling their boss what they really think about him or her. Fortunately, most employees have the good sense not to write down what they are thinking about their employer....more

!@#$% Vote Yes for the UNION! Facebook Post Protected by the NLRA? Second Circuit Says Yes

In National Labor Relations Board v. Pier Sixty, LLC, No. 15-1841 (April 21, 2017), the Second Circuit upheld the National Labor Relations Board’s (NLRB) finding that an employee’s Facebook post, although “vulgar and...more

Every Manager and Their Mother: Second Circuit Shields Social Media Insults against Supervisor and His Entire Family

On Friday, April 21, 2017 a Second Circuit Court of Appeals panel affirmed a National Labor Relations Board ruling that a catering company server was wrongfully terminated for making an obscene and vicious Facebook post that...more

Is Calling Your Boss “a Nasty Mother******” Protected Activity?

by Shipman & Goodwin LLP on

My colleague Gary Starr returns today with a decision from the Second Circuit (which covers Connecticut) that may just surprise you. Then again, if you’ve been following this line of reasoning, perhaps not....more

Whistleblower Retaliation Protection Expands in Oregon

by Stoel Rives LLP on

We are confident that employers already take employee reports of potentially unlawful activity seriously. Such internal reports can help employers investigate and eliminate unlawful conduct in the workplace. The Ninth...more

New Hampshire Supreme Court Quickly Disposes of Whistleblower Claims

Defeating whistleblower claims often requires a significant investment of time and resources in protracted litigation. But a recent decision in New Hampshire provides some hope that employers will be able to dispose of...more

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