The National Labor Relations Board recently issued a somewhat surprising decision that provides useful guidance to employers facing employee misconduct. In Flex Frac Logistics, LLC, the Board found that an employee’s discharge for breaching the employer’s confidentiality policy was lawful, despite the Board’s finding that the confidentiality policy was unlawful.
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As we discussed with participants in our recent Labor and Employment Law Seminar, despite recent setbacks, the National Labor Relations Board continues to issue decisions that are concerning for employers. These decisions, which impact union and non-union employers alike, often take an expansive view of the protections afforded employees by the National Labor Relations Act. In a recent case involving a complaint filed by an (alleged) independent contractor working for a non-union employer, the Board found that the contractor’s electronic communications, directed at employees of a different employer, were protected by the Act because the communications constituted union organizing activity.

In New York Party Shuttle (pdf), the Board first considered whether the complaining party, a tour guide, was an employee or an independent contractor. The Tour Guide was regularly hired by Party Shuttle to provide guided tours of New York City. He also maintained his own tour company, and booked and provided tours through his own company. The Board held that Party Shuttle failed to establish that that the Tour Guide was an independent contractor. In making its decision, the Board applied a common law test that considers a multitude of factors and places the burden on the employer to establish independent contractor status. In this case, the Board found that Party Shuttle failed to establish that the tour guide as an independent contractor.

After determining that the Tour Guide was an employee, the Board turned to the next issue, the Tour Guide’s termination.


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Last year, we reported on the first National Labor Relations Board Administrative Law Judge decision examining an employee’s discharge for social media activity. Recently, the Board made Hispanics United its second decision examining an employee’s discharge for comments posted on Facebook. The Board held that the employer violated the National Labor Relations Act when it discharged five employees for criticizing another employee on Facebook. Although examining a new media, the Board stated that it was relying on established precedent to find that the activity in question was for “mutual aid or protection” within the meaning of Section 7 of the Act. Accordingly, the Board affirmed the ALJ’s decision ordering reinstatement of the discharged employees.
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We have been getting a lot of questions from employers about how employees’ legal use of marijuana impacts an employer’s ability to enforce its drug testing policy. Colorado and Washington recently became the first states to approve the recreational use of marijuana, but numerous other states have legalized the use of marijuana for medical purposes for several years. Now employers are asking: what happens if an employee tests positive for marijuana under our workplace drug and alcohol policy, but says that he or she used marijuana legally either for medicinal purposes or while in a state that has legalized marijuana for all purposes?
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Does your company’s leave policy call for an employee’s termination following the expiration of his or her leave entitlement?  Does your company charge “attendance points” against employees regardless of the reason for the absence?  Does your company require employees to be released to work without restrictions before they are permitted to return from a medical

Recently, a National Labor Relations Board (Board) Administrative Law Judge (ALJ) found that an employee who was discharged for posts he made on his Facebook page was not discharged in violation of the National Labor Relations Act. In Knauz Motors, Inc., the ALJ found that the employee’s Facebook posts contained both protected and non-protected activity, but that the employee was terminated for only the non-protected activity. As a result, the ALJ refused to find that the employee’s discharge was unlawful.

Interestingly, when the terminated employee was confronted by management with the Facebook posts, the employee reacted as many employees may react. He stated that his Facebook page was “none of [their] business.” However, while it may appear that the Board will go to great lengths to protect employee social media activity, not all employee social media activity is protected by the National Labor Relations Act. Some employee posts may, in fact, be an employer’s business.
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Earlier this year the Superior Court of Pennsylvania held that a worker who was fired after he informed his employer that he was proceeding with legal action against a co-worker may maintain an action against the employer under Pennsylvania’s Crime Victims’ Employment Protection Act.

This decision may come as a surprise to many Pennsylvania employers who may not have even been aware of the Act. Now, an employer must be careful when an employee informs it that he/she has been the victim of a crime, intends to report the crime to the police, and will attend court to pursue legal action.
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So your employee recently posted photos of herself lounging poolside with margarita in hand while out on FMLA leave. Can you do something more than just compliment her nice tan?

Earlier this year, in the case of Pellegrino v. Communications Workers of America, a Pennsylvania federal court answered yes. The court upheld the termination of an employee for violating a work rule that restricted employee travel outside the immediate vicinity while on FMLA leave.
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