Second Circuit

Gorman v. Rensselaer County, ___F.3d ___, 2018 WL 6367243 (2d Cir. Dec. 6, 2018).

            In Gorman v. Rensselaer County, 2018 WL 636-7243 (2d Cir. Dec. 6, 2018), the Second Circuit held that a corrections officer who exposed a sergeant’s abuse of a restricted police database to spy on his ex-girlfriend’s new boyfriend can be retaliated against for his speech act because the law was not clearly-established that this whistleblowing is protected under the First Amendment.

            The sergeant was dating plaintiff’s sister, but the relationship ended when Plaintiff’s brother told his sister that the sergeant was having an affair.  Meanwhile, the sergeant went to the eJustice database to check up on the new boyfriend’s criminal history.  The eJustice maneuver violated the new boyfriend’s privacy and was against the law; it cannot be used for personal reasons, only legitimate law enforcement reasons.  The sergeant was prosecuted for using this restricted database, and he pleaded guilty.  Plaintiff, meanwhile, was retaliated against for blowing the whistle on the sergeant.

            Under settled First Amendment law, public employees cannot be retaliated against for speaking on matters of public concern, to be determined by the content, form and context of the speech. Public concern speech relates to any matter of concern to the community.  At the same time, public defendants can invoke qualified immunity, which disallows the lawsuit for damages if the case law was not clearly-established at the time.  While exposure of official police misconduct is “generally of great consequence to the public,” the Second Circuit has also stated that “no authority supports the argument that reporting an alleged crime always implicates a matter of public concern,” such as in Nagle v. Marron (2d Cir. 2011), where a teacher did not engage in protected speech when she complained that someone forged her name on an official in-school report.

            The Second Circuit holds that Gorman’s speech was not clearly protected under the First Amendment because “there is no indication that [the sergeant] or the other defendants were engaging in an ongoing pattern of misconduct that might concern the public,” and the sergeant’s “isolated use of a computer program for a private purpose implicated neither public safety nor the use of taxpayer’s money.” Moreover, the majority holds, “the context was a volatile, intra-family feud that embroiled [the sergeant] and the Gorman siblings,” and plaintiff’s speech “was calculated to redress Gorman’s personal grievances” against the sergeant, had no “broader public purpose” and “was score-settling, and had small practical significance to the public.”

Stephen Bergstein, Esq.
Bergstein & Ullrich, LLP
5 Paradies Lane
New Paltz, New York 12561
(845) 419-2250
www.TBULaw.com
www.secondcircuitcivilrights.blogspot.com

Fourth Circuit

United States ex rel. Grant v. United Airlines, Inc., No. 17-2151 (4th Cir. Dec. 26, 2018), available at http://www.ca4.uscourts.gov/opinions/172151.P.pdf

           An aviation maintenance technician brought a qui tam action against his former employer, United Airlines, under the False Claims Act (FCA).  The employee alleged two substantive violations of the FCA, 31 U.S.C. § 3729, and also alleged that United unlawfully terminated his employment in violation of the FCA’s anti-retaliation provision, 31 U.S.C. § 3730(h).  United worked as a subcontractor for the Air Force, and was responsible for servicing engines pursuant to certain standards.  According to the employee, United certified engine repairs that it knew did not meet these standards, and returned the engines to the Air Force for payment in violation of the FCA.  The employee alleged that United terminated his employment after he repeatedly complained to management about United’s fraudulent conduct.  On United’s Rule 12(b)(6) motion, the district court dismissed all three claims.  The district court dismissed the retaliation claim on the ground that the employee did not allege that he engaged in FCA-protected activity, because the employee did not allege that he conducted an investigation or took steps in furtherance of commencing an FCA action before his employment was terminated.  The employee appealed.  The Fourth Circuit affirmed the dismissal of the substantive FCA claims and reversed the dismissal of the retaliation claim.

            The whistleblower provision of the FCA prohibits retaliation “because of lawful acts done by the employee . . . in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the FCA].”  Unlike a substantive FCA claim, which sounds in fraud and must meet the heightened pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure, a retaliation claim need only satisfy the notice pleading standard of Rule 8(a).  A plaintiff must allege that (1) she engaged in protected activity; (2) her employer knew about the protected activity; and (3) the employer took adverse action against her as a result.

            Before turning to the complaint, the Fourth Circuit clarified the legal standard for pleading protected activity.  Prior to 2009, protected activity was limited to acts in furtherance of an FCA action.  The Fourth Circuit applied what it called a “distinct possibility” standard to determine whether there was protected activity:  Employees engaged in protected activity when litigation was a distinct possibility, when the conduct reasonably could lead to a viable FCA action, or when litigation was a reasonable possibility.  Congress amended the FCA in 2010 to include a second category of protected activity, “other efforts” to stop an FCA violation.  The Fourth Circuit concluded that the “other efforts” prong does not require a showing that an FCA action is in the making, and is therefore not subject to the “distinct possibility” standard.  Instead, the Fourth Circuit adopted an objective reasonableness standard:  An act constitutes protected activity where it is motivated by an objectively reasonable belief that the employer is violating, or soon will violate, the FCA.  A plaintiff satisfies this standard by alleging facts sufficient to show that she believed her employer was violating the FCA, her belief was reasonable, she took action based on that belief, and her actions were designed to stop a violation of the FCA.

            The Fourth Circuit concluded that the district court erred by applying the distinct possibility standard.  Under the objective reasonableness standard, the Fourth Circuit ruled that the employee alleged protected activity.  The employee alleged that he complained internally that United was submitting false claims, and the Fourth Circuit concluded that he acted on an objectively reasonable belief that United was committing fraud.  The Fourth Circuit concluded that the employee sufficiently alleged that his complaints were designed to stop United from violating the FCA.  The Fourth Circuit also ruled that the employee adequately alleged that United knew about the protected activity, because he alleged that he made internal complaints.  Finally, the employee’s allegation that his employment was terminated the day after he told United its fraudulent conduct could result in a catastrophic engine failure was sufficient to plead that United took adverse action as a result of the protected activity.  Therefore, the Fourth Circuit concluded that the employee stated a retaliation claim, and reversed the dismissal of that claim.

Submitted by:                         

                 
Paul K. Sun, Jr.
Kelly Margolis Dagger
Ellis & Winters LLP
paul.sun@elliswinters.com
kelly.dagger@elliswinters.com
Post Office Box 33550
Raleigh, North Carolina 27636
Telephone: 919.865.7014
www.elliswinters.com

Fifth Circuit

Johnson v. Halstead,  — F.3d —- (5th Cir. Dec. 19, 2018) (2018 WL 6627820).

            Delbert Johnson is an African American who worked with the Fort Worth Police Department since 1990.  In 2005, he was promoted to Sergeant and assigned to the Traffic Division where he was the only African American supervisor.  Several years after his promotion, he was approached by an African American officer about an offensive picture, taken by Sergeant Mike Cagle, depicting Sergeant Ann Gates holding a noose around a snowman’s neck.  An unspecified officer, not Johnson, reported the picture to Internal Affairs which admonished Gates and Cagle for violation of Department policies. 

            Sergeant Stamp was unhappy with the admonishment received by his colleagues and began to isolate and undermine Johnson.  These actions included (1) telling other supervisors (a) to watch out for Sgt. Johnson, (b) Sgt. Johnson could not be trusted, and (c) Sgt. Johnson was now their enemy; (2) publicly criticizing Sgt. Johnson to other supervisors, officers, and civilian employees; (3) conspiring with others to boycott certain meetings and assignments overseen by Sgt. Johnson; (4) attempting to sabotage one of Sgt. Johnson’s assignments by trying to convince other officers not to work on a federal grant managed by him; and (5) accusing Sgt. Johnson of stealing money from the grant program, which resulted in three audits and investigations that found no evidence of wrongdoing.  Three months after Johnson’s report of race discrimination to Chief Halstead, Sgt. Johnson was transferred from the day shift that he held for eight years to the Second Shift, which Johnson described as “one of the worst shifts in the entire police department.”  Chief Halstead and other upper-level officials blocked Johnson from the open position of Jail Sergeant despite the fact that he was the only applicant. 

            In response to Sgt. Johnson’s discrimination complaints as well as race discrimination complaints of two other officers, the Fort Worth Police Department engaged an outside investigator.  After a ten-month investigation, the investigator released a report finding that the Department “tolerated and allowed a hostile work environment over a three year time period that was based on race and retaliation for [Johnson’s] prior complaints of race discrimination and harassment.”  The Report concluded that “[t]he insulting, demeaning and offensive behavior . . . directed toward [Johnson] continued, in part because the department leadership failed to take directed action as required by” Department policies.  After that report, Halstead apologized to Johnson and transferred him back to his day shift supervisor position. 

            Sgt. Johnson filed suit against Halstead in his individual capacity, the City, and Halstead’s successor in her official capacity as Police Chief asserting asserted civil rights claims under sections 1981 and 1983 for race discrimination, hostile work environment, and retaliation.  The trial court granted in part and denied in part Chief Halstead’s motion for judgment on the pleadings, dismissing Johnson’s claims for racial discrimination based on Halstead’s own alleged acts of harassment, but denied it as to the hostile work environment claims based on a theory of supervisory liability; retaliation under section 1981 in response to Johnson’s complaint about the discrimination; and First Amendment retaliation.  Citing the Iqbal/Twombly plausibility standard, the Fifth Circuit assessed whether plaintiff’s Complaint included sufficient facts to overcome Chief Halstead’s qualified immunity defense by alleging facts (1) that set forth a constitutional violation and (2) that the violation of rights was clearly established at the time of the defendant’s conduct. 

            The Fifth Circuit quickly rejected Chief Halstead’s argument that there was no clearly established right to be free from a race-based hostile environment under §1981.  The Court then found that Plaintiff’s allegations went well beyond “simple teasing, offhand comments, and isolated incidents” and that Chief Halstead was deliberately indifferent to the racially hostile work environment based on the repeated complaints of civil rights violations followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents.  Although the lower court applied the wrong standard to the retaliation claim (ultimate employment decision rather than materially adverse action that might dissuade a reasonable worker from making or supporting a charge of discrimination), the Fifth Circuit affirmed the denial of immunity on that claim, having no difficulty finding that plaintiff satisfied the less stringent standard applicable to retaliation claims.  As to the First Amendment retaliation claim, however, the Court found that Plaintiff had not alleged that he made any statement as a citizen on a matter of public concern rather than as an employee. 

            Accordingly, the Fifth Circuit affirmed the denial of Halstead’s immunity defense as to the hostile work environment and section 1981 claims, but reversed and granted immunity as to the section First Amendment retaliation claim.

Gurule v. Land Guardian, Inc.,  — F.3d —- (5th Cir. Dec. 27, 2018) (2018 WL 6802637).

            Plaintiffs worked at a Houston nightclub as bottle-service waitresses.  They filed suit alleging failure to pay minimum wage and overtime, alleging that their employer systematically diverted tips from them in violation of the FLSA.  The trial court granted summary judgment against two of the plaintiffs on the tip diversion/minimum wage claims, leaving only the third plaintiff’s claim for trial.  Over 1½ years before trial, the defendant made an offer of judgment that plaintiff rejected.  After a one-day trial, the jury awarded plaintiff $1,131.39 in compensatory damages and the court awarded $25,089.30 in attorneys’ fees.  And given that plaintiff’s recovery was less than the offer of judgment, the Court ordered plaintiff to pay defendants $1,517.57 in costs.

            The Fifth Circuit affirmed the trial court’s summary judgment against the two plaintiffs who failed to establish a prima facie FLSA claim.  The Fifth Circuit also affirmed the district court’s award of $25,089.30 in attorneys’ fees, noting that Plaintiff sought $129,565 based on the lodestar method.  After excluding certain work from the lodestar calculation, which reduced the demand to $62,722.80, the court reduced the demand by 60% given that only one plaintiff prevailed and her recovery was less than the rejected offer of judgment.   

            The defendant appealed the trial court’s fee award, arguing that even the reduced award was improper because it was disproportionate to Plaintiff’s damages.  Initially, the court found that, because the FLSA defines attorneys’ fees separately from costs, Rule 68 did not preclude a fee award despite the plaintiff’s rejection of a better offer. Agreeing with the Fourth, Ninth and Tenth Circuits, the Fifth Circuit held that the rejected offer should be considered in assessing the reasonableness of an attorneys’ fee award.  The Court also rejected the argument that precedent imposed a strict proportionality requirement and noted that the trial court specifically assessed the lack of success and rejected offer in arriving at the fee award.  Because the trial court considered the rejected offer in its decision to impose a 60% reduction, the Court affirmed, rejecting the argument that the court abused its discretion because it did not reduce the fees further. 

Nall v. BNSF Railway Co., — F.3d —- (5th Cir. Dec. 27, 2018) (2018 WL 6804260).

            Plaintiff Nall began working as a trainman with BNSF in 1973.  He was diagnosed with Parkinson’s disease in 2010. At this time, BNSF provided Nall and his doctor with a medical status form listing the job duties of a trainman.  After Nall’s neurologist cleared him to continue working, BNSF’s doctor revised the form to include switchman duties different from the trainman duties on the previous form.  Nall continued to work with BNSF for the next year and a half without incident. 

            In 2012, BNSF gave Nall a letter stating that a co-worker had voiced concern about Nall’s ability to safely perform his job duties, after which BNSF placed Nall on medical leave and required him to obtain a return to work release from the BNSF’s medical department.  Nall’s neurologist, neuropsychologist, and occupational therapist all confirmed that Nall could perform the essential job functions.  Nall also performed a field test, and the physical therapist who designed it noted that Nall had decreased balance when reaching, a resting tremor, and slow and jerky movement patterns.  BNSF then informed Nall that, based on the field tests, he was not approved to return to work.

            Nall filed an EEOC charge.  The EEOC investigation concluded that it did not agree with BNSF that Nall was a potential harm to himself or others or that he was incapable of doing his job. The EEOC thus concluded that there was a violation of the ADA.  Nall then filed suit under the ADA and for retaliation.  Finding no direct evidence of discrimination, the trial court issued summary judgment finding that Nall was not qualified for his position as a trainman, failed to present evidence of pretext, and was precluded from succeeding on his claims because BNSF was entitled to a “direct threat” defense. 

            On appeal, the Fifth Circuit reversed the trial court’s summary judgment on the ADA claim.  The Court agreed that there was no direct evidence of discrimination.  But applying McDonnell Douglas, the Court focused on the trial court’s conclusion that Nall was not qualified for the job because he posed a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.  The Fifth Circuit held that the inquiry is not whether it was reasonable for BNSF to conclude that Parkinson’s disease symptoms prevented Nall from safely performing his duties; rather, the question is whether BNSF came to that conclusion via a reasonable process and not via manipulation to achieve BNSF’s desired result of disqualifying him.  In other words, if there is any evidence in the record which, if believed, would be sufficient to support a jury finding that BNSF’s procedures for evaluating Nall’s disability were unreasonable, summary judgment would be improper. 

            The Court affirmed the trial court’s summary judgment dismissing the claim of retaliation, finding that Plaintiff failed to present evidence of a causal link (i.e., that the decisions to keep him on leave was based on knowledge of the EEOC charge).  As to the substantive ADA claim, however, the Court concluded that the trial court improperly granted summary judgment after finding that BNSF’s safety concerns constituted a legitimate, non-discriminatory reason to place Nall on medical leave.  Citing the numerous medical reports that cleared Nall to work, the comments by BNSF employees, and the fact dispute about the “safety exceptions” during Nall’s field test, the Court held that there were sufficient to create a material fact issue on the question of whether BNSF’s evaluation procedures were reasonable or manipulated midstream to produce a certain outcome. 

Submitted by:
 
Donna Phillips Currault
Gordon, Arata, Montgomery, Barnett,
McCollam, Duplantis & Eagan, LLC
201 St. Charles Ave.  40th Floor
New Orleans, Louisiana 70170-4000
Direct: (504) 569-1862
Email:  dcurrault@gamb.law

Sixth Circuit

Haddad v. Randall Gregg, Jean Boven, Michigan Department of Insurance and Financial Services, No. 18-1660 (6th Cir. Dec. 3, 2018).

            In Haddad, David Haddad performed Market Conduct Exams of insurers as an Examiner for the Michigan Department of Insurance and Financial Services (DIFS).  During an exam plaintiff noted an insurer’s “intra-family exclusion” (IFE), which placed a substantial cap on the benefits a victim could receive.  Believing the exclusion to be unfair, plaintiff investigated and educated himself on IFE’s, both within DIFS and by consulting third-party attorneys.  DIFS eventually became aware of plaintiff’s activities and, after investigating, terminated plaintiff’s employment.  Plaintiff sued in part based upon First Amendment retaliation, claiming he’d been speaking as a private citizen on matters of public concern (the IFE’s). 

            District Judge Neff concluded that plaintiff, though his actions may have been laudable and motivated by the public interest, had nevertheless made statements addressing the very regulatory issues he dealt with in his employment as a DIFS Examiner.  Plaintiff had therefore not been speaking as a private citizen, and consequently was not entitled to First Amendment protection.  Judge Neff therefore granted Defendants’ motion for summary judgment.

            Plaintiff appealed in pro se, claiming he had acted as a “virtual private citizen” because his DIFS duties required him to speak in the public’s interest.  The Sixth Circuit rejected plaintiff’s “virtual private citizen” argument, finding that regardless of the characterization plaintiff’s statements had been made pursuant to his official duties.  The Sixth Circuit therefore affirmed the District Court’s grant of summary judgment.

Kurt N. Sherwood
Miller, Canfield, Paddock & Stone, P.L.C.
277 S. Rose Street, Suite 5000
Kalamazoo, MI  49007
sherwood@millercanfield.com    

Kurt Sherwood focuses on public and private sector labor and employment law issues.  He represents cities, townships, colleges and universities, manufacturers, health-care facilities and auto parts suppliers, among others, in such areas as traditional labor, contract administration and negotiation, NLRB, FLSA, EEO and FMLA.

 

Eleventh Circuit

Friedenberg vs. School Board of Palm Beach County, No. 17-12935 (11th Cir. December 20, 2018)   

            In Friedenberg vs. School Board of Palm Beach County, the Court considered the constitutionality of a policy that required all substitute teacher applicants to pass a drug test as a condition of employment. Generally, a drug test by the government without any suspicion of wrongdoing violates the privacy rights protected by the Fourth Amendment’s ban on unreasonable searches and seizures. These privacy concerns are outweighed, however, in very narrow circumstances — where the search serves a compelling public interest. Here, the Eleventh Circuit, as a matter of first impression, upheld the lower court’s determination that the School Board’s duty to ensure the safety of millions of schoolchildren in the mandatory supervision and care of the state were compelling concerns to justify requiring all applicants for substitute teaching positions, without any suspicion of wrongdoing, to undertake and pass a drug test.

            Ms. Friedenberg applied for several positions with the Palm Beach County School District: tutor, substitute teacher, and early childhood aide. She was conditionally offered a position as a substitute teacher, pending the results of a full background check and a drug screen. Although Ms. Friedenberg submitted to the fingerprinting required for the background check, she refused to submit to the drug screen. Ms. Friedenberg then filed the underlying action, seeking declaratory and injunctive relief on behalf of herself and “[a]ll job applicants for non-safety-sensitive positions with the Palm Beach County School District.” The district court limited its inquiry to substitute teacher applicants, finding that Ms. Friedenberg had only established standing as to that group. In weighing the applicants’ privacy rights, the court considered the invasiveness and intrusiveness of the testing methods, as well as the number of individuals (and their roles) who had access to the drug test results. The court balanced these rights against “the special responsibility of substitute teachers for ‘the care of society’s most vulnerable members,’” concluding that “the balance of interests strongly favored the policy of suspicionless drug testing.” Denying the preliminary injunction, the district court found that Ms. Friedenberg had failed to establish “a substantial likelihood of success on the merits,” the first element of the four-prong test for injunctive relief enumerated in Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002) (citing Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001)). The matter then came before the Eleventh Circuit on interlocutory appeal.

            Although the suspicionless drug testing of public school teachers is a matter of first impression, the Eleventh Circuit Court looked to prior Supreme Court decisions regarding similar testing in the context of the public school setting. In Vernonia School District 47J v. Acton, for example, the Court found suspicionless testing of student athletes to be permissible, noting that “the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.” 515 U.S. 646, 665 (1995). Similarly, in Board of Education v. Earls, the Court held permissible the suspicionless testing of all students participating in extracurricular activities – not just student athletes – weighing the students’ privacy interests “in a public school environment where the State is responsible for maintaining discipline, health, and safety.” 536 U.S. 822, 830 (2002). The Eleventh Circuit also considered cases where government employees (adults) who were engaged in safety sensitive tasks, could be subjected to suspicionless drug testing (citing Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989); AFSCME v. Scott, 717 F.3d 851 (11th Cir. 2013). Ultimately, the Eleventh Circuit reasoned that: “Teachers do not sacrifice as many rights upon entering a school as students do; and instructing schoolchildren is not as safety-sensitive as operating a railroad. Nonetheless, we find that, in the unique Fourth Amendment context of a public school, teachers are in a sufficiently safety-sensitive position so that guaranteeing a safe and effective learning environment presents a compelling need to justify suspicionless drug testing.”

Anne Tomasello is an associate with the firm of Scott · Wagner and Associates in Jupiter, Florida.  She handles many facets of employment litigation, but focuses on discrimination and retaliation matters.  Ms. Tomasello truly enjoys the counseling aspect of the legal profession and helping clients navigate through their legal claims.

D.C. Circuit

Browning-Ferris Industries of California, Inc. v. National Labor Relations Board, __ F.3d __, 2018 WL 6816542 (D.C. Cir. Dec. 28, 2018)

            In Browning-Ferris Industries of California, Inc. v. National Labor Relations Board, the D.C. Circuit addressed a putative employer’s challenge to the NLRB’s controversial 2015 changes to its joint employer standard and largely upheld the changes.  As the NLRB is currently undertaking rulemaking processes to again change the joint employer standard, the decision may not have tremendous impact.

            The putative employer operated a recycling plant, a portion of which was largely staffed by workers hired by a separate staffing agency.  While the workers are formally employees of the staffing agency and are supervised by the staffing agency, the contract between the putative employer and the staffing agency imposed several requirements on the staffing agency that allowed the putative employer to control various aspects of the employees’ employment. 

            The court noted that while the National Labor Relations Act sheds no light on the proper joint employer standard, courts and the NLRB have adopted a standard set forth by the Third Circuit under which two entities are joint employers if the each “exert significant control over the same employees” and “share or co-determine those matters governing essential terms and conditions of employment.”  The NLRB in the early 2000s had added additional requirements constricting this test, by looking only to evidence of actual control, as opposed to a reserved right of control, and requiring that an exercise of control be “direct and immediate.”  In the Browning-Ferris case, the NLRB abrogated these additional requirements.

            The D.C. Circuit upheld the NLRB’s legal standard but disagreed with its application to the facts.  The court held that under common law principles of agency, a party’s right to control and make changes to the terms and conditions of employment of another party’s employees was relevant to the joint employer even if that control was not actually exercised.  The court further found that it would defy common sense to only consider control that was exercised directly, as opposed to indirectly through an intermediary.  That being said, the D.C. Circuit faulted the NLRB’s application of this standard to the facts.  The court pointed out that not every exercise of control is relevant to the analysis and criticized the NLRB for failing to differentiate between exercises of control over “essential terms and conditions of employment” and “routine contract terms” such as a cap on contract costs, global oversight, or an advance description of the tasks to be performed.  The court remanded the case to the NLRB to further explain and clarify its analysis.

MEK Arden, LLC v. National Labor Relations Board, __ Fed. Appx. __, 2018 WL 6721352 (D.C. Cir. Dec. 7, 2018)

            In MEK Arden, LLC v. National Labor Relations Board, the D.C. Circuit upheld the NLRB’s finding that an employer had committed numerous unfair labor practices under the National Labor Relations Act in the midst of a union election campaign in which the employer prevailed by four votes.  First, the court upheld the NLRB’s finding that an executive of the employer had solicited and promised to correct grievances held by one of the union representation campaign’s organizers, noting that it is well-established that such promises improperly suggest to employees that union representation is unnecessary and are impermissible in the absence of a past practice of soliciting grievances in a like manner.  Second, the court upheld the NLRB’s finding that a work rule, instituted days after the filing of an election petition, that prohibited employees from visiting other areas of the employer’s facility for non-work-related reasons was an unfair labor practice because it was adopted in response to union activity and applied to restrict union activity.  Third, the court found that the employer’s instruction that employees not wear purple scrubs that indicated union support was an unfair labor practice.  Fourth the court upheld the NLRB’s finding that a manager’s statement to employees that a surveillance system monitored employee conversations was calculated to intimidate employees against voting for the union.  Finally, the court found that the employer had enforced a rule against posting non-work-related materials in the break room in a discriminatory manner, prohibiting employees from posing union materials while permitting other non-work-related materials.

Jack Blum is an associate in the Employment Disputes, Litigation and Arbitration practice at the Washington, D.C. office of Polsinelli, P.C.  Mr. Blum represents employers in connection with claims of discrimination, wage and hour issues, the interpretation of employment agreements, the enforcement of restrictive covenants, and misappropriation of trade secrets.