News & Analysis as of

Protected Activity

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

Gorsuch’s Alleged Cold Heart: What the 10th Circuit’s Decision Regarding the Freezing Trucker and Gorsuch’s Dissent Means for...

by Genova Burns LLC on

Tenth Circuit Judge and U.S. Supreme Court Nominee Neil Gorsuch was on thin ice during his senate hearing for his dissent in TransAm Trucking, Inc. v. Admin. Review Bd., United States DOL, 833 F.3d 1206 (10th Cir....more

Court Finds Lawsuit By Corporation Against Minority Shareholder Is “Protected Activity”

by Allen Matkins on

SLAPP is the initialization of the phrase “strategic lawsuit against public participation”. A more informative description of SLAPP suits is found in Simpson Strong-Tie Co., Inc. v. Gore, 49 Cal.4th 12, 21 (2010)...more

Florida Private Sector Whistleblower Must Show Actual Violation of Law

The Southern District of Florida recently held that to establish a prima facie case under the Florida Private Whistleblower Act (FWA), § 448.102(3), Fla. Stat., a plaintiff must show an actual violation of a law, rule or...more

California District Court Addresses Whistleblower’s Self-Help

In Erhart v. BofI Holding, Inc., Case No. 15-cv-02287, (S.D. Cal. Feb. 14, 2017), a bank’s internal auditor reported alleged misconduct to federal agencies, engaged in self-help discovery by appropriating the bank’s...more

The California Court Of Appeal Weighs In: The Development And Production Of An Entertainment Program Is Protected Under The...

by Kelley Drye & Warren LLP on

In a recent 50-page published opinion, the California Court of Appeal determined that offensive and derogatory language on a movie set was protected activity under the anti-Strategic Lawsuit Against Public Participation (or...more

NLRB Finds Employee’s Facebook Posts Critical of Union Protected

by Seyfarth Shaw LLP on

Seyfarth Synopsis: NLRB affirms ALJ’s ruling finding that a union member’s criticisms on Facebook of the union that represented him were protected by the NLRA. On February 7, 2017, in Laborers’ International Union of...more

Recent Decisions Clarify (Un)Enforceability of Class Action Waivers in Employment Agreements

Companies looking to waive class action rights of employees may instead be waving goodbye to provisions in their employment contracts. Two recent decisions in California—one administrative and one in the 9th Circuit—recently...more

Florida Whistleblower Act Requires Showing of Actual Violation, Federal Court Rules

by Jackson Lewis P.C. on

Florida’s private-sector Whistleblower Act (“FWA”) protects only those employees who can show an actual violation of a law, rule, or regulation, a federal district court has held. Graddy v. Wal-Mart Stores East, LP, No....more

Employees, Political Advocacy and the NLRB – What Can an Employer Do?

by Littler on

In the first few weeks of the Trump Presidency, there have been numerous marches, protests and other forms of political advocacy expressing views both in support of and in opposition to the President’s various appointments,...more

NYSDOL Adopts Regulations Implementing State Law Limiting Employer’s Right to Restrict Employee Discussion Regarding Wages

by Jackson Lewis P.C. on

In October 2015, New York amended its equal pay law making it unlawful for an employer to prohibit employees from inquiring about, discussing, or disclosing their wages or the wages of other employees. N.Y. Lab. Law §...more

Eighth Circuit Affirms Dismissal of MHRA Reprisal Claim Finding No Evidence of Pretext

In Sieden v. Chipotle Mexican Grill, Inc., No. 16-1065 (January 26, 2017), the Eighth Circuit Court of Appeals reiterated its view that an employee fails to establish pretext for an employer’s adverse employment action where...more

The Federal Railroad Safety Act — An Employer’s Nonretaliatory Reasons for Discharging an Employee Must Be Considered in Context...

by Lane Powell PC on

The Federal Railroad Safety Act (FRSA) prohibits a rail carrier from retaliating against an employee because the employee engaged in certain activities protected by the statute, including the reporting of a workplace injury....more

Dear Littler: Can A Boss Fire Someone for Off-Duty Political Activities?

by Littler on

Dear Littler: I saw one of my employees on the local news the other night participating in a political rally over the weekend. We try to maintain a tension-free workplace. Can I discipline him for this conduct? Can I at least...more

2016/2017 Labor & Employment Observer

by Cozen O'Connor on

Activist NLRB Created More Problems For All Employers in 2016 - What Happens Under President Trump? During 2016, the National Labor Relations Board (NLRB or the Board) maintained its generally pro-union, anti-employer...more

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