Overlawyered » labor unions

NLRB ALJ: restaurant can’t fire workers over false posters claiming its food is unsafe

Walter Olson — Thu, 24 May 2012 15:26:45 +0000

Following an unsuccessful effort to unionize franchise restaurants of the Jimmy John’s chain around the Minneapolis area, run by a firm named MikLin, the Industrial Workers of the World union (“Wobblies”) began a second campaign, as John Hauge explains at Minnesota Employer:

Part of the campaign involved putting up posters that called into question the healthfulness of sandwiches prepared in MikLin’s shops. The posters erroneously stated that employees were not allowed to call in sick, and implied that persons eating the sandwiches risked illness by doing so. Several employees supporting the campaign met with MikLin to demand that it provide sick pay to employees, and threatened to put the posters up all over the Twin Cities. The union also issued a press release entitled “Jimmy John’s Workers Blow the Whistle on Unhealthy Working Conditions.”

In a 1953 case called NLRB v. Electrical Workers Local 1229 (Jefferson Standard), the U.S. Supreme Court ruled that although federal labor law in general forbids employers to dismiss workers for union advocacy, it makes an exception for expressions of “disloyalty”, as in the case of “a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” In those cases, the Court ruled, an employer was still free to dismiss the disloyal workers, union activists or no.

You might think that would fit the facts of the Jimmy John’s case quite well, especially given the falsity of the assertion that the restaurant workers couldn’t take sick leave. But an administrative law judge at the NLRB has disagreed, ordering back pay and reinstatement for the dismissed union workers and dismissing the falsity as mere “hyperbole.”

Hauge at Minnesota Employer calls the decision “creative” and warns readers that (assuming the decision is not overturned at the board level) the NLRB may be increasingly inclined to extend protection against “retaliation” to a wider swath of “untrue, malicious and/or disparaging” talk during union campaigns. At least when it comes from the pro-union side.

Tags: labor unions, restaurants

NLRB ALJ: restaurant can’t fire workers over false posters claiming its food is unsafe is a post from Overlawyered - Chronicling the high cost of our legal system

Labor and employment law roundup

Walter Olson — Thu, 24 May 2012 04:08:17 +0000

Gov. Walker’s public sector labor reforms popular with Wisconsin voters, and have saved taxpayers a fortune [Morrissey, Fund, Marquette poll (public favors new law by 50-43 margin] What would FDR say? [Dalmia, The Daily]
“Why you should stop attending diversity training” [Suzanne Lucas, CBS MarketWatch, following up on our earlier post]
The gang that couldn’t regulate straight: “Court rebuffs Labor Department on sales rep overtime” [Dan Fisher, Forbes] Lack of quorum trips up NLRB on “quickie”/ambush elections scheme [Workplace Prof]
Not all claimed “gun rights” are authentic, some come at expense of the vital principle of at-will employment [Bainbridge]
Brace yourself, legal academics at work on a Restatement of Employment Law [Michael Fox]
“Why Delaware’s Proposed Workplace Privacy Act Is All Wrong” [Molly DiBianca]
USA Today on lawyers’ role in growth of Social Security disability rolls [Ira Stoll]

Tags: Delaware, employment at will, guns, labor unions, privacy, wage and hour suits, Wisconsin

Labor and employment law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Labor and employment roundup

Walter Olson — Fri, 04 May 2012 04:06:24 +0000

Failure to accommodate employee’s religious belief forbidding hair-cutting results in $27K payout by Taco Bell operator [EEOC, North Carolina]
There’s a reason they call it Government Motors: nonunion GM assembly workers get shaft [Fountain]
Mayor Bloomberg refreshingly sane on “living wage,” though not alas rent control [Heather Mac Donald, Secular Right]
“The cost of labor isn’t the main problem, it’s the rigidities,” says French CEO [Bloomberg]
Maryland governor signs bill softening “workplace fraud” law that bedevils firms that use independent contractors [H.B. 1364, earlier]
Watch out for ghastly, mislabeled “Paycheck Fairness Act,” they’re trying to bring it back [Diana Furchtgott-Roth, Examiner, earlier]
“The most infuriating part of this is that it takes five years of litigation to fire a badly behaved police officer” [Josh Barro, Masnick/TechDirt, on cop's harassment of skateboarder; Baltimore Sun (police union calls officer's firing "outrageous.")]

Tags: Baltimore, France, General Motors, labor unions, Maryland, Michael Bloomberg, police, religious discrimination

Labor and employment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Labor and employment law roundup

Walter Olson — Thu, 26 Apr 2012 10:40:33 +0000

Arbitrator: felonious Montgomery County, Maryland cops should keep disability pay [Examiner] “Cop who took naked photos of rape victim can keep pension” [NY Post] Cop who pepper-sprayed UC Davis protesters is still on job, and maybe that’s how they’d have it [Radley Balko]
“Billions in retroactive liability” in pharma detailer wage/hour action before SCOTUS [Marcia Coyle, NLJ] And USA Today chose a faulty “worker discontent” theme on wage/hour case, since as class actions these suits are lawyer-driven;
Australia: “Worker injured during sex gets compensation payout” [News.com.au]
“Courts are finally starting to apply ADAAA—and it ain’t pretty” [Jon Hyman] ADA: “Judge Rules In Favor of Fired Employee With Bipolar Disorder” [ABC]
NLRB goes after Hyatt on employee handbook language [Gary Shapiro, Examiner] Union claims Indiana right-to-work law violates Thirteenth Amendment ban on slavery [James Sherk, NRO]
EEOC: sex discrimination law bars bias against transgender employees [AP, Hyman] “EEOC Obtains Substantial Settlement in Obesity Discrimination Suit” [Disabilities Law]
Law journal prediction: adherents of racism will claim Title VII protection [Lawrence D. Rosenthal, Temple L. Rev. via Workplace Prof]

Tags: Australia, disabled rights, EEOC, labor unions, Maryland, obesity, police, transgender, wage and hour suits, workers' compensation

Labor and employment law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Labor and employment law roundup

Walter Olson — Tue, 17 Apr 2012 04:08:22 +0000

Court rebukes EEOC in big sex harassment class action against trucking firm [Memphis Commercial Appeal]
Union protects some dodgy educators: “Found to Have Misbehaved With Pupils, but Still Teaching” [New York Times]
Spain changes its labor law [Global Post]
Employment-law blogs debate employment at will [Jon Hyman]
James Sherk of Heritage on proposed Employee Rights Act;
Unlawful under Contracts Clause to alter public employee pensions? Really? [Secunda, Workplace Prof; Barnes v. Arizona State Ret. Sys., Ariz. Super. Ct., No. CV-2011-011638, 2/1/12]
Coalition challenges Connecticut governor’s executive order aimed at unionizing home health aides [Michael Tremoglie, Legal NewsLine]

Tags: Arizona, Connecticut, constitutional law, EEOC, employment at will, Europe, labor unions, Spain, teacher tenure

Labor and employment law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Labor and employment roundup

Walter Olson — Thu, 05 Apr 2012 04:03:55 +0000

“Increasing Employment Discrimination Awards to Take Account of Adverse Tax Consequences” [TaxProf]
NRA’s wrong on this: “Bill to bar employer bias against gun owners gets OK from Missouri House” [St. Louis Post-Dispatch]
ALJ: “we are an at-will employer” handbook statement violates NLRA [Duane Morris Institute]
“What the EEOC’s Strategic Plan Means for Employers” [Laura Harshbarger, NYLELR]
Connecticut bill would require public schools to teach organized labor history [Raised S.B. No. 304; background from a supporter, PDF; h/t Fountain]
SEIU hand seen in “Occupy”-allied sit-ins targeting GOP politicians [Richard Pollack, Daily Caller]
Wage and Hour Litigation is Big—and Getting Bigger” [Shannon Green, Corporate Counsel]

Tags: Connecticut, EEOC, guns, labor unions, Missouri, schools, taxes, wage and hour suits, workplace

Labor and employment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“Wisconsin’s reforms are working”

Walter Olson — Tue, 20 Mar 2012 19:59:24 +0000

Sensible changes to the ground rules on labor relations — including the option to go around the union’s monopoly provider of health care insurance — are saving local governments hundreds of millions of dollars. [John Steele Gordon]

P.S. Bill McGurn on public employee unions in the still very unreformed state of New Jersey [Hillsdale "Imprimis"] And: how some public employees “spike” their pensions in California [L.A. Times via Amy Alkon]

Tags: California, labor unions, public employment, Wisconsin

“Wisconsin’s reforms are working” is a post from Overlawyered - Chronicling the high cost of our legal system

Herding home care workers into unions

Walter Olson — Wed, 07 Mar 2012 05:38:43 +0000

In Illinois and other states, union-friendly governors have spearheaded efforts to redefine home care workers funded by state programs as public employees, the better to herd them into union representation. The upshot: persons who take care of their own family members in their homes, and accept checks from state programs designed to keep their loved ones out of nursing homes or other institutions, wind up being obliged to take on the status of employees (as distinct from contractors) and pay union dues, whether or not they are so inclined. Critics say the practice raises questions of freedom of association under the Bill of Rights, and the U.S. Supreme Court has signaled possible interest on the part of at least one justice by asking for additional information in the pending case of Harris v. Quinn. [Trevor Burrus, Cato; David Rivkin and Andrew Grossman, NRO; Ilya Shapiro and Trevor Burrus, Cato amicus brief]

Tags: labor unions, Supreme Court

Herding home care workers into unions is a post from Overlawyered - Chronicling the high cost of our legal system

Labor and employment roundup

Walter Olson — Tue, 28 Feb 2012 05:21:00 +0000

Two retaliation cases that should scare employers [Robin Shea via Jon Hyman]
Maryland law redefining independent contractors as employees vexes flooring business [Bethany Rodgers, Frederick News Post, editorial, earlier] New York Times on minimum wage 1987 vs. 2012: 1987 made more sense [Mark Perry] E-discovery drives up cost of wage and hour litigation [Jon Hyman]
Irony alert: “Unionized workers organize against National Labor Relations Board” [Adam Jablonowski, Daily Caller]
Proposals to create new rights for public employee unions [Ivan Osorio/CEI, federal; Jack Mann/CEI, California] Courtesy LA taxpayers, garage monitor at L.A. Department of Water & Power makes $74K/year as compared with $21K elsewhere [L.A. Times via Amy Alkon] Connecticut governor proceeds with plans to herd personal care attendants into union [Trey Kovacs/CEI]
Colorado measure regulating use of credit records in hiring is solution in search of problem [Mark Hillman, Colorado Springs Gazette]
Connecticut proposal to ban unemployment discrimination heats up [Daniel Schwartz]
German high court orders universities to raise salaries for starting professors [Walter Russell Mead]

Tags: Colorado, Connecticut, discrimination law, Germany, labor unions, Los Angeles, Maryland, public employment, wage and hour suits, workplace

Labor and employment roundup is a post from Overlawyered - Chronicling the high cost of our legal system

February 17 roundup

Walter Olson — Fri, 17 Feb 2012 14:38:53 +0000

Mortgage robo-signing settlement not actually as punitive toward the banks as you might think, succeeds in sticking costs onto various parties not at table [FT, more (US taxpayers could wind up covering much of write-down costs through HAMP program); Felix Salmon (write-downs of underwater mortgages should not be assessed at face value); Mark Calabria, Cato and more, Bloomberg (banks managing to offload much of the cramdown onto investors such as pension funds); Daniel Fisher/Forbes one, two, three (banks get covert benefits, politicos get social engineering and fees -- shades of the collusive tobacco settlement!); Above the Law (Schneiderman steers money to legal services programs); Linette Lopez, BI (banks still exposed on many issues). More: Hans Bader, John Steele Gordon.
"Burned at mediation by my own Facebook post" [Stuart Mauney, Abnormal Use]
As anti-discrimination law advances, religious liberty retreats [Roger Pilon, Cato] Two views on the birth control mandate [Cathy Young, David Henderson] More: Adler, Frum.
Caswell Motel case from Tewksbury, Mass. heads to court, could test forfeiture law [Balko] More: Washington Post editorial.
Which is more unreasonable, OSHA regulation or FAA’s? Open to dispute [John Cochrane, Grumpy Economist]
Indiana becomes a right to work state. On to Michigan next? [Shikha Dalmia, Reason]
Warning! Tale of trial psychologists in wizard garb comes from a sinister source, namely me ["In the News," forensic psychologist Karen Franklin, handsome illustration swiped from Cato site]

Tags: aviation, banks, discrimination law, Facebook, forfeiture, Indiana, labor unions, Michigan, mortgages, OSHA

February 17 roundup is a post from Overlawyered - Chronicling the high cost of our legal system