Just as the seasons change, so do new legal “quirks” in the area of employment and labor law. The following are some of the key areas that every employer needs to stay abreast of.
1. The NLRB and At-Will Clauses in Employee Handbooks. A few months ago, I wrote in this column about the NLRB’s apparent recent interest in penalizing employers who used traditional at-will clauses in their employee handbooks and employee handbook acknowledgement forms. According to an NLRB-appointed administrative law judge (and to some NLRB officials in public speeches), the use of an acknowledgement form in a handbook could discourage employees from engaging in collective bargaining, or even attempt to discuss the terms and conditions of their employment with co-workers, because employees were being asked to sign statements such as, “I acknowledge that the terms of my employment cannot be changed unless in writing and unless signed by the president.”
On October 31, however, the NLRB appeared to change course yet again. In two memoranda issued by the NLRB’s Division of Advice, the agency decided that two at-will clauses were not written in such a broad manner as to “chill” employees’ rights under the NLRA and concluded that no action would be taken against the two employers who drafted those clauses. The NLRB-approved provisions read:
“No manager, supervisor or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”
“No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship.”
In sum, and as I recommended before, employers should continue to use at-will clauses in their employee handbooks. The value of including such clauses far outweighs the risk of NLRB scrutiny.
2. “Facebook Firings”–TheLatest. Speaking of the NLRB, the full NLRB reviewed the infamous “hot dog” termination case and decided on September 28, that the employer did not violate the NLRB when it terminated the employee. (In re Karl Knauz Motors, Inc., d/b/a/ Knauz BMW (13-CA-046452, 358 NLRB No. 164)). Specifically, the NLRB found that the firing of the BMW salesman for photos and comments posted to his Facebook page did not violate his right to engage in protected “concerted activity” under the NLRA because the comments and photos were neither protected nor concerted.
Early media reports about this case (spurred by the NLRB’s publicity) suggested that the employee had been fired for posting photos of and criticizing the food that the employer car dealership provided to customers at a special BMW event. The employee’s criticisms on Facebook (all of which were written in a sarcastic tone) suggested that the employer had made a bad mistake by serving Sam’s Club hot dogs and chips at the BMW event, and the employee was terminated soon thereafter. The employer, however, successfully proved that another set of photos posted by the employee were the real reason for the termination. In those postings, the same employee posted photos of an embarrassing and potentially dangerous accident at an adjacent car dealership (owned by the same employer), again on Facebook. Both the Administrative Law Judge (“ALJ”) who initially reviewed the case and the NLRB found that the employer was fired solely for the photos he posted of the accident. As the ALJ wrote, “It was posted solely by [employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment.”
This result was good news for employers. Although terminating employees who post unpleasant things on Facebook or other internet sources can still expose an employer to potential legal liability, the Karl Knauz BMW case demonstrates that employers can and, in some cases, should exercise their rights to terminate such employees.
3. Change to the Military Family Leave Act Rules? Most employers probably missed the quiet announcement by the Oregon Bureau of Labor and Industries (“BOLI”) in September that regulations regarding Oregon’s Military Family Leave Act (“OMFLA”) could be changing.
In BOLI’s Notice of Proposed Rulemaking, BOLI proposed that for purposes of OMFLA, an employee eligible for OMFLA leave need not be eligible for leave under Oregon’s Family Leave Act (OFLA). In other words, an employee need only work an average of 20 hours per week before taking his or her statutorily protected right to 14 days of leave per deployment; the employee does not have to work for the employer for 180 days (as OFLA requires). (See OAR 839-009-0390; OAR 839-009-0410.)
By the time this article is published, BOLI will not be accepting public comment on this proposed rule change, and by all accounts, the change will likely be implemented within the next six months. Employers should be mindful of the change when it happens, and avoid OFMLA-interference claims by ensuring that eligible employees take the leave they are entitled to under OMFLA.
Tamara E. Russell, a partner at Barran Liebman LLP, has devoted her 15-year practice to the exclusive representation of employers and management in a variety of employment- and labor law-related matters. Questions about this article can be directed to the author at trussell@barran.com or by calling 503-228-0500.
