Protected Activity

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NLRB: Employees Have Right to use Employer’s Email for Union Organizing if Other Non-Business Use is Permitted

Today, the National Labor Relations Board held that employees have a right to use their employer’s communications systems – including email – for protected activity during non-working time, unless the employer prohibits all ...more

Higher burdens in SOX whistleblower retaliation claims - 5 tips for employers

Two recent decisions have clarified the heightened burden facing employers addressing whistleblower retaliation claims under Section 806 of the Sarbanes-Oxley Act (SOX). On October 9, 2014, in Fordham v. Fannie Mae,...more

NLRB Rules That Employees Have Right to Organize Using Company Email

The National Labor Relations Board (NLRB) issued its decision in Purple Communications, Inc. & Communication Workers of America, AFL-CIO today, holding that employees who are given access to company email accounts have a...more

Employees Must Be Permitted to Use Their Employer Email Systems for Nonwork Purposes — Right to Wear Union Insignia Is Expanded

Reversing well established precedent, on December 11, 2014, the National Labor Relations Board (NLRB or the Board) held that employees that have been given access to their employers’ email systems, must be permitted to use...more

City SLAPPs Away Landlord's Section 1983 Claim

Anti-SLAPP motions provide defendants with a valuable tool to dispose of meritless cases that stifle protected speech . In Squires v. City of Eureka (October 17, 2014, A138768; A139849) ___Cal. App.4th___ [14 Cal. Daily Op....more

For Whom the Whistle Blows

In This Issue: - Applicability and Protected Activity - Procedure Governing Section 402 Claims - Five Steps to Compliance - For More Information - Excerpt from Applicability and Protected...more

Fifth Circuit Says Community Service Can Be Protected Religious Practice

Title VII requires employers to accommodate employees’ religious beliefs and practices. Understandably, courts are reluctant to make judicial determinations as to what are and what are not sincere religious activities. Last...more

NLRB Still “Likes” Expansive Employee Speech

Unlike many issues, it seems that at least one issue (so far) has the NLRB on the same page as a recent court decision: whether clicking “like” on Facebook amounts to substantive, protectable speech. In my earlier blog posts...more

Recent NLRB Decisions Condone Workplace Profanity and Insubordination - Employers Need to Know What Is Considered Protected...

An administrative law judge (ALJ) of the National Labor Relations Board (the "Board") recently found that a Hooters employee who cursed at her co-worker during an employee bikini contest was wrongfully terminated by her...more

NLRB's Recent Triple Play Decision Tackles Two Critical Social Media Issues for Employers

With the intersection between cutting-edge social media and the Depression-era National Labor Relations Act (NLRA or the Act) still relatively new, employers are looking for answers to some fundamental questions when it comes...more

Facebook "Like" Button - Protected Activity? It Depends on What You "Like"!

In an ever expanding arc of decisions that extends the NLRA’s protections to a wide range of employee conduct – both on-and off-duty, and in union and non-union settings alike – the NLRB last week decided that merely clicking...more

Ninth Circuit Holds Alleged Retaliatory Actions Must Be Viewed in Context For Purposes of a First Amendment Retaliation Claim

In Wendy Thomas, et al v. County of Riverside, et al, the Ninth Circuit considered whether the District Court properly granted summary judgment of an employee’s First Amendment retaliation claim in favor of the employer....more

NLRB Expands Reach of NLRA by Finding Employee Who Sought Help From Coworkers For Her Sex Harassment Complaint Was Protected

In yet another case that impacts both union and non-union employers, the National Labor Relations Board (NLRB) recently found that an employee who asked coworkers for assistance in preserving evidence for a sex harassment...more

SCOTUS Affirms Right to Blow Your Whistle in Public Sector

There has long been tension in the public sector regarding an employee’s duties as an agent of the state and his or her right as an individual to freedom of speech. In a decision handed down in June of 2014, the United States...more

Better Check The Brakes

The previous month’s sales numbers are final and Jane’s sales are abysmal…again. You’ve had enough and decide to fire her. You call HR to get the paperwork started. Your HR manager tells you that Jane has just left her office...more

SOX Claim Dismissed: Rejection of IP Assignment Clause Not Protected Activity

The U.S. District Court for the Northern District of Illinois recently granted a Rule 12(b)(6) motion to dismiss a SOX whistleblower retaliation claim, concluding that the plaintiff did not engage in protected activity. Fuqua...more

NLRB ALJ Finds Civility Requirement in Employer's Social Media Policy Legally Permissible

Federal Administrative Law Judges continue to adjudicate claims brought by the National Labor Relations Board’s general counsel, challenging the legality of employer social media policies. As reported in EmployNews, the NLRB...more

U.S. Supreme Court Finds Sworn Testimony Outside Scope of Regular Job Duties Entitled to First Amendment Protection

While the labor and employment law world is abuzz after the decisions in Burwell v. Hobby Lobby and Harris v. Quinn (cases this Blog will cover in the coming days), the United States Supreme Court also issued a decision...more

Supreme Court Finds Public Employee's Testimony in Criminal Trial Protected Under First Amendment

Last week, the U.S. Supreme Court unanimously held that a public employee cannot be retaliated against by his employer based on testimony provided by him under subpoena in a criminal proceeding. In Lane v. Franks, the...more

First Amendment Protects Public Employees for Sworn Testimony Given Outside Scope of Regular Job Duties on Matters of Public...

U.S. Supreme Court Makes Unanimous Ruling in Lane v. Franks - The First Amendment protects a public employee from adverse employment action taken in retaliation for providing truthful sworn testimony, compelled by...more

Supremes Rule That Trial Speech is Protected Speech

Last week the U.S. Supreme Court issued an important decision affecting public employers and employee First Amendment rights to free speech. Lane v. Franks et al., No. 13-483 (U.S. June 19, 2014). Central Alabama Community...more

The Supreme Court Says Public Employee’s Court Testimony Protected From Retaliation Under The First Amendment, At Least To The...

Eight years ago the United States Supreme Court, in Garcetti v. Ceballos, instructed that speech undertaken pursuant to a public employee’s job duties is “employee” speech and not “citizen” speech, and hence is not protected...more

U.S. Supreme Court Rules that Sworn Testimony by Employee is Protected by the First Amendment

Providing truthful, sworn testimony outside the course of ordinary job duties is First Amendment speech for the purposes of retaliation lawsuits, the U.S. Supreme Court ruled on June 19, 2004. The ruling prohibits a public...more

U.S. Supreme Court Holds Sworn Testimony Relating to Public Employee’s Employment Protected by First Amendment Where Speech is...

Recently, the United States Supreme Court granted certiorari to resolve whether a public employee’s testimony in response to a subpoena is entitled to First Amendment protection where providing such testimony is outside the...more

Did You Know…Compelled Public Employee Testimony May Be Protected By the First Amendment

The Supreme Court’s recent unanimous decision in Lane v. Franks held that the First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job...more

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