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.

Biogenesis and the (Bad) Boys of Summer

August 16, 2013 - by: David Kim 0 COMMENTS
David Kim

For some people, summer evokes thoughts of sunshine and long walks on the beach with sand under their bare feet (sounds like the setting of a Nicholas Sparks novel … or so I’m told). For me, I think of baseball. As an annual subscriber to MLB Extra Innings, I think of the plethora of games waiting for me when I get home from work, especially those of my hometown Red Sox. I constantly check my fantasy baseball team to see what moves I can make to catapult me up the standings. When I’m working late, the text from my wife doesn’t just ask when I’m coming home, but also provides me with spirit-lifting updates: “McCutchen just hit a three-run bomb.” Pause. Fist pump. Back to work.

But this summer, my fellow baseball fans and I aren’t the only ones thinking and talking about America’s pastime. Biogenesis has dominated the headlines, culminating in the suspension of 13 major and minor league baseball players this month, in addition to last month’s suspension of Ryan Braun. Interestingly, none of these players actually tested positive for performance enhancing drugs (except for Braun back in 2011, who successfully appealed based on a technicality, and has now been introduced to my friend karma). A failed test would establish per se grounds for a 50-game suspension pursuant to the Joint Drug Agreement (JDA) between Major League Baseball and the Player’s Union.

The JDA, however, also provides that the commissioner of baseball may discipline a player for “just cause,” in essence providing that strong enough circumstantial evidence can be sufficient to justify suspension. While the majority of baseball players were suspended 50 games pursuant to the “just cause” provision under the JDA, Braun (65 games) and Alex Rodriguez (211 games) were given additional suspensions. Under the Basic Agreement between the union and MLB, players may be disciplined for “conduct that is materially detrimental or materially prejudicial to the best interests of Baseball including, but not limited to, engaging in conduct in violation of federal, state or local law.”  (link to the JDA and Basic Agreement here if you’ve got some down time).

MLB is clearly taking all measures in its power to “clean up the game.” But while the organization is the most visible employer interested in ensuring a drug-free environment in its workplace, it is not the only one. Employers of all kinds have either implemented, or are considering implementing, workplace drug-testing policies, protocols, and procedures. However, as drug-testing laws in each state differ dramatically, employers must ensure that they are in compliance with applicable law. Each state has its own laws about who can be tested and under what circumstances. For example, some states permit random, or suspicionless, testing. Other states permit testing only if there is a reasonable suspicion of drug use, and still others permit testing only in specific safety-related situations. State laws also differ with respect to how the testing may be conducted, the procedures required for any testing entity, and what specific type of prior notice, if any, is required to be given to an employee or applicant.

In addition, employers with unionized workforces should be prepared to negotiate all aspects of its drug-testing policy, which the National Labor Relations Board has determined is a mandatory subject of bargaining. Just don’t expect to be dealing with a union highly motivated to clean up its workplace like the MLB Player’s Union or employees who will quietly accept discipline based on circumstantial evidence. Well, except for A-Rod, who we all know is the only player appealing his suspension. Of course, A-Rod has well over 25 million reasons to appeal (base salary of $25M in 2014, not including incentives and bonuses).  And I have no reason to believe A-Rod’s appeal, or the issue of performance enhancing drugs in baseball, will be resolved anytime soon. Play ball.