NLRB "LIkes" Facebook: Clicking "LIke" is Considered Protected, Concerted Activity
August 29, 2014

On August 22, 2014, the National Labor Relations Board (NLRB or the Board) issued a much-anticipated ruling with respect to social media in the workplace. In a case involving the termination of two employees for their participation in a Facebook discussion about claims that employees unexpectedly owed additional State income taxes because of the employer's withholding mistakes, the Board ruled that clicking the "Like" button on Facebook was protected, concerted activity shielded by the National Labor Relations Act (NLRA or the Act). Specifically, although the Board recognized that a "like" may be ambiguous, it takes the position that such conduct expresses agreement with the subject of the target posting and therefore can be considered protected, concerted activity. The "like" does not, however, reach subsequent comments unless each comment is individually "liked" as well.

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Sixth Circuit Finds Employer Violated ADA by Requiring Employee to Undergo Psychological Counseling
August 27, 2014

The plaintiff, Emily Kroll, worked as an EMT for the White Lake Ambulance Authority (WLAA). Although her supervisors initially considered her to be a good employee, her workplace behavior became problematic following an affair with a married co-worker. WLAA became concerned over Kroll's emotional well-being after she was observed by employees crying in the parking lot, called her Office Manager in tears after finishing a shift, and it was reported she failed to administer oxygen to a patient because she was arguing with a female co-worker during an ambulance run. Another co-worker also reported that Kroll had screamed at a male acquaintance on a cell phone while driving an ambulance loaded with a patient.

The WLAA Director, Brian Binns, advised Kroll that she could continue her employment with WLAA only if she agreed to undergo psychological counseling. Binns admitted at trial that he decided to compel counseling because Kroll's "life was a mess and he thought he could help her." He also explained that he was concerned about Kroll's personal life and sexual relationships. Kroll testified that Binns told her she "needed counseling because of [her] immoral personal behavior." WLAA did not consult with a psychologist or mental health professional before deciding to force Kroll to attend counseling. Kroll refused counseling because she could not afford to pay for it and never returned to work.

Kroll sued WLAA claiming she was constructively discharged because the requirement that she attend counseling violated the ADA. The ADA states: "A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."

In August 2010, a U.S. District Court dismissed Kroll's lawsuit holding that the psychological counseling at issue did not constitute a medical examination. The District Court also found that Kroll posed a "direct threat" to her own safety and others because of the potential danger of her unsafe driving. 

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Concerted Protective Activity
August 21, 2014

In Hollis Press Inc., 343 NLRB 301 (2004), the National Labor Relations Board held that an employee who filed a sexual harassment complaint with a state agency was not engaged in protected concerted activity when she solicited co-workers to be witnesses. In Fresh & Easy Neighborhood Market, Inc., 361 NLRB No. 12 (2014), the National Labor Relations Board reversed the holding in Hollis Press. The Board majority held that "an employee seeking the assistance or support of his or her coworkers in raising a sexual harassment complaint is acting for the purpose of mutual aid or protection. This decision applies equally to cases where. . . an employee seeks to raise that complaint directly to the employer, or . . . to an outside entity." Id. at 7.

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NLRB Rules McDonald's is Co-Employer with Franchisees under NLRA
August 20, 2014

The NLRB's Office of the General Counsel has issued an important statement authorizing complaints for unlawful labor practices against McDonald's, USA, LLC and their franchisees. In it, the General Counsel may have taken a new approach in how the NLRB will handle employee charges against franchisors and franchisees, by treating the franchisor and the franchisee as joint employers.

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Fair Pay and Safe Workplace Executive Order
August 05, 2014

 On July 31, 2014, President Barack Obama signed the Fair Pay and Safe Workplace Executive Order which will require prospective federal contractors report violations of 14 Federal laws and as yet unspecified state laws when bidding on service and supply contracts.

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