If you can’t stand the heat, get out of the kitchen—best practices from Top Chef

August 14, 2017 - by: Rachel E. Kelly 0 COMMENTS
Rachel E. Kelly

“If you can’t stand the heat, get out of the kitchen!” That’s essentially what a group of Teamsters told Top Chef host personality Padma Lakshmi back in June 2014 outside of Steel & Rye restaurant in Milton, Massachusetts. This “episode” is now at the center of a lawsuit brought by the federal government against four Boston-area Teamsters accused of threatening Top Chef production into providing them with positions already held by nonunion employees.  On Strike Sign

The incident occurred in June 2014, when Lakshmi arrived at the restaurant for the filming of a Top Chef episode. Her van was met with a group of Teamsters, one of whom allegedly approached Lakshmi’s vehicle, reached in the passenger side window where she was sitting, and said, “Lookee here, what a pretty face.” Naturally, Lakshmi understood this to be a threat—or at least this is the theory of the attorneys prosecuting the case.

The Teamsters on the other hand contend that the incident outside of the restaurant was for the purpose of a legitimate union objective, i.e., picketing to obtain jobs driving Top Chef’s trucks for their fellow out-of-work Teamsters. Prosecutors argue that the Teamsters were attempting to strong-arm the Bravo show’s crew into paying them for unneeded work, for which there is no legal protection. See United States v. Enmons, 410 U.S. 396 (1973), (Holding that federal law does not protect union violence in furtherance of the union’s objectives).

So, what are some best practices for employers facing a labor picket?

1) First, an employer needs to know that strikes and picketing are protected conduct under the National Labor Relations Act, under certain circumstances. A union, however cannot strike or picket an employer to force it to stop doing business with another employer that is the primary target of a labor dispute. At work sites with more than one employer, such as a construction site, picketing is permitted only if the protest is clearly directed exclusively at the primary employer.

2) Picketing should be confined to public places surrounding the employer’s premises. As a general rule, there should be no picketing in private places or on the street.

3) While picketers can be enthusiastic in support of their picket, the chants should not include threats, slurs, or other forms of harassment based on race, nationality, or gender/sexual orientation.

4) Picketers should avoid confrontation and not make physical contact with anyone under any circumstances. This includes throwing items, brandishing weapons, following individuals to and from the picket site, and making threats.

5) Generally, employers subject to a picket cannot obtain a legal injunction to prohibit or stop a picket. Both state and federal law prohibit a court from intervening by issuing an injunction to prohibit a peaceful picketing protest. But employers should be mindful, as pickets are not without some constraint. In the event a picket results in the blockade of entrances, violence, and/or the destruction of property, courts may issue an injunction.

6) Protesters can picket only employers that are subject to the actual labor dispute. Therefore, it’s vitally important for employers to know whether they are considered the actual employer. For instance, contractors that subcontract the work are not considered employers of the trade being picketed by the union. As an example, if the project has a two-gate system and the carpentry union is picketing a particular project, the union may picket only at or near the gate that the carpentry subcontractor uses, i.e., the picketers cannot picket at the electricians’ gate. If a union fails to honor this two-gate system, the employer can raise the issue before the National Labor Relations Board.

7) Finally, employers cannot terminate employees for participating in a strike or picket, or their feet will be held to the fire!

Exercise Aniston-esque restraint when analyzing offensive employee posts

February 22, 2016 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

by Ed Carlstedt

This week’s employment law lesson comes to us from the movie Horrible Bosses. In the movie, Julia (played by Jennifer Aniston) is a dentist who employs dental assistant Dale (played by Charlie Day). After Julia uses her boss status to torture and torment Dale for most of the movie, Dale finally records her improprieties and delivers to her the following long-overdue payback speech:

This is what’s gonna happen. I’m going to take a two-week-long, very expensive holiday with my fiancée. Let’s call it a honeymoon. And YOU’RE going to pay for it! Then I’m going to return to a nice, rape-free workplace from now on. Because if you so much as LOOK at my sexy little a**, Julia, I will have yours locked the f*** up you CRAZY B**** WH***! Man, that felt GOOD!

In the movie, Dale’s quote is an amusing moment of vindication and redemption, one that Julia’s conduct warrants. You literally find yourself rooting for Dale as he delivers the obscenity-laced tirade. The notion of telling off a horrible boss without fear of reprisal is every Woman Watching Shocking Message On Social Network Late Nightaggrieved employee’s dream. And in the movie, there was nothing Aniston’s character could do other than sit there and take it. But in real life, what does an employer do when an employee posts similar obscenities about it on social media. Well, if the National Labor Relations Board (NLRB) has anything to say about it, you might have to adopt an Aniston-esque approach to responding to the potty-mouthed employee.

In Pier Sixty, LLC, 362 NLRB No. 59 (Mar. 31, 2015), a managerial-level employee of a catering business (Bob) asked several staff-level employees to spread out during a fundraising event and stop chitchatting. One of the employees was so offended by the manager’s instructions that he posted the following on Facebook:

Bob is such a NASTY MOTHER F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Shortly thereafter, the employer learned about the Facebook post, conducted an investigation, and terminated the employee. In analyzing the employee’s Facebook post, the NLRB found that his comments were protected activity under the National Labor Relations Act (NLRA) because they pertained to concerted activity and union activity. The NLRB found that the employee’s comments (all of his comments, including the F-bombs and accompanying family love-making references) were protected. Therefore, the NLRB found that the employer violated the NLRA when it terminated the employee for his participation in protected conduct, and it awarded him back pay.

Several other cases adhere to the sentiments of the Pier Sixty case, including Three D, LLC v. NLRB, 2015 WL 6161477 (2d Cir. 2015), and Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015). These cases demonstrate that employers should be extraordinarily careful when disciplining employees over social media posts, particularly when the posts or questionable conduct pertains in any way to conditions of employment.

Based on these decisions, the NLRB and courts are likely to broadly define protected activity under the NLRA, even when the employee’s comments are riddled with profanity and make statements damaging to the employer. Thus, just like Jennifer Aniston in Horrible Bosses, employers may be forced to turn the other cheek when confronted with what appear to be obscene and inflammatory employee remarks. To the extent you are an employer considering disciplinary action based on an employee’s social media post, we highly recommend you consult with counsel before taking such action.

Ranking the high court

December 01, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

When football season kicked off earlier this year, I took the chance to glean some insights for HR professionals from the difficult job facing the new college football playoff selection committee. Now that we’re coming up on the end of the football season, I’m turning to the committee once more for inspiration.shutterstock_105026918

As I write, the selection committee is chewing over this weekend’s results and will let us know its judgment on the four best teams (so far) in college football. Soon, they will choose the “final four” who will play a two-week tournament to decide the national champion. Right now, Alabama and Oregon are pretty much the consensus #1 and #2. Despite Florida State’s best efforts to play their way out of this thing, they keep finding ways to win and are generally #3 by default. Mississippi State (last week’s #4) took it on the chin from their archrival, Ole Miss, so the committee will apply its eye test and pick a new #4 (and leave an angry #5 and #6). My money is on TCU at #4.

I’m going to borrow the format and select my top four Supreme Court employment law decisions from the last five years. I’ve ranked them below, along with a capsule summary that explains why I’ve ranked it #1, and so on. Then, I’ll pair them up, play them off of each other, and pick the champion. Feel free to disagree in the comments!

The Final Four

Number 1: Wal-Mart Stores, Inc. v. Dukes (2011). This case is a true heavyweight, combining employment law and federal class action procedure. Wal-Mart won at the Supreme Court, which held that a nationwide class action of present and former female employees was inappropriate under the Federal Rules. Wal-Mart’s win in this case was a powerful blow against attempts to aggregate individual employment decisions under one lawsuit.

Number 2: New Process Steel, L.P. v. NLRB (2010). This one gets in on flash. The case garnered a ton of controversy, newsprint, and political attention at the time. The ultimate question, however, may have been a bit pedestrian: Eventually, New Process Steel prevailed when the Supreme Court held that two members of the National Labor Relations Board did not constitute a quorum of the board for exercising authority.

Number 3: Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010). Wait a minute – this one isn’t even an employment case! No matter. AnimalFeeds is a key component of a recent line of Supreme Court authority that supports the use of arbitration to resolve disputes. More and more employers are presenting arbitration programs to employees, and they will particularly like the holding in this case that class action arbitration is not available unless the parties specifically authorize it.

Number 4: Gross v. FBL (2009). This case sneaks in and will probably seem a bit esoteric to non-lawyers. Gross held that “but for” jury instructions are the rule for Age Discrimination in Employment Act claims, unlike status discrimination Title VII claims in which a lower “mixed motive” instruction is appropriate. Gross has already had one follow-up: University of Texas Southwestern Medical Center v. Nasser (2011), which applied the higher “but for” standard to Title VII retaliation claims.

The Predictions

In the Rose Bowl, top-ranked Wal-Mart v. Dukes will win a surprisingly close victory over Gross v. FBL. Gross is already punching above its weight, but just can’t overcome the sheer significance of the Wal-Mart opinion. Next, in the Sugar Bowl, AnimalFeeds and its arbitration impact will score a minor upset over New Process Steel. Finally, Wal-Mart claims the title of most significant Supreme Court decision in a championship game that is never all that close.

So … who thinks my crystal ball is broken?

Labor Board gets an F for its treatment of A-List

September 29, 2014 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Celebrities … they’re just like us. Which is to say that they now have a reason to be ticked off at the National Labor Relations Board too. A recent decision by an NLRB administrative law judge tells Hollywood’s A-listers they get no special treatment under the labor laws.

shutterstock_157705382 (2)The MUSE School, founded by Titanic director James Cameron, is an elementary school in Calabasas, California, a wealthy town north of Los Angeles. Some of the students at MUSE are children of celebrities. Given the school’s notoriety, all MUSE School employees are required to sign an extensive confidentiality agreement as a condition of employment.

In June 2013 an employee left the MUSE School. Shortly after her departure, the school’s attorney sent her a sternly-worded letter accusing her of violating her confidentiality agreement and threatening legal action if she continued to do so. The employee, in turn, filed an unfair labor practice charge with the NLRB alleging that the MUSE School’s policy violated labor laws.

The employee claimed that the policy violated the National Labor Relations Act by prohibiting discussion of compensation, prohibiting recording anything taking place at the school, and prohibiting the making of any disparaging remarks about the school. The NLRB judge agreed.

In the past few years, the NLRB has taken a very harsh view of employer conduct policies. The Board has ruled that many seemingly neutral, well-meaning policies – courtesy policies, social media policies, nondisclosure policies – violate labor law because a reasonable employee could believe the language of the policy restricts their protected concerted activities, which include discussing pay, recording an employer’s unlawful conduct, and making statements critical of an employer.

The MUSE School argued that its high-profile founder and clientele meant its confidentiality policy deserved a little extra leeway. The NLRB judge briskly shot that argument down: “Respondent does not cite any case law or Board precedent showing how the confidentiality of its founders and celebrity clients triumphs its employees’ right to discuss their wages, hours, or other terms and conditions of employment.” Take that, glitterati.

The National Labor Relations Act was made law in 1935 to achieve industrial peace by regulating union-management relations. Eighty years later the Board is reviewing confidentiality policies at swanky L.A. private schools where celebrities send their kids. Maybe the NLRB judge just wants a feature in Variety.