Employment Law This Week®: Facebook Rant Is Protected Activity, DC Metro Bias Case, Salary History Law on Hold, Overtime Rule Delayed

(1) Second Circuit Rules Facebook Rant Was Protected Activity

Our top story:  An employee’s Facebook rant was protected activity, says the Second Circuit. In the midst of a tense union campaign, a catering company employee posted a profanity-laced message on Facebook. The post insulted his supervisor and encouraged colleagues to vote for unionization. The employee was subsequently fired. Upholding an NLRB ruling, a panel for the Second Circuit found that the post was protected under the NLRA and the employee should not have been terminated. The Court noted that Facebook is a modern tool used for organizing. Ian Carleton Schaefer, from Epstein Becker Green, has more.

"The Court said the rant was made and directed at terms and conditions of employment, to better the workplace environment, and in the context of a union-organizing drive that was very tense. The second factor that the Court considered was that even though it was laced with vulgarity, vulgarity was very commonplace in that workplace on a day-to-day basis and the employer had never taken an adverse action, disciplinary or discharge, against anybody else. The third factor that the Court considered was the context and the forum in which these comments and this rant was made. The rant was posted on Facebook, as opposed to the rant being in front of clients, in front of customers, and it was done on the employee’s authorized breaktime."

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(2) Three Classes Certified in DC Metro Bias Case

A district judge certified three classes in a DC discrimination case: A group of African American applicants and employees for the Washington Metropolitan Area Transit Authority claim they were disproportionately impacted by the agency’s background check system. The plaintiffs are arguing that they were disqualified because of criminal history that was unrelated to the job or occurred so long ago that it was irrelevant. A federal judge declined to certify a single class in the case, certifying three subclasses instead. Each class represents a different job category, which corresponds to different parts of the policy.

(3) Philadelphia’s Salary History Law Temporarily Stayed

Philadelphia's salary history ordinance is on hold: The law prohibiting employers from requesting an applicant's salary history was set to go into effect on May 23. A district judge temporarily stayed the effective date, and the City has agreed not to enforce it until the court has resolved an injunction request from the Chamber of Commerce for Greater Philadelphia. Among other constitutional challenges, the Chamber claims that the law violates the First Amendment. They argue that it unduly restricts an employer’s free speech because it is highly speculative whether the law will lessen wage disparities caused by gender discrimination.

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(4) DOL's Overtime Rule Appeal Delayed

The DOL’s overtime rule will stay enjoined: The Fifth Circuit has granted the government’s request to delay its appeal of the injunction against the new salary thresholds. Before Alexander Acosta was confirmed as Secretary of Labor last Thursday, the Trump administration sought more time to determine what position it will take on the controversial rule. The government's final reply brief will now be due on June 30, unless another extension is requested.

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(5) Tip of the Week

Rochelle Kopp, Managing Principal for Japan Intercultural Consulting, shares some advice on best practices for team-building across cultures.

"People put a great value on the time spent together and developing personal relationships and bonding as a group of people. In order to take advantage of this, one thing that you can do is to plan more social opportunities for your team members to get together.  . . . Doing something outside of work where people can spend time together and socialize and bond really has a big impact. I also recommend having some type of team logo or color or symbol. Something that brings all of you together. . . . Sometimes, from an American perspective, this might seem almost a little bit corny, but I can assure you it's really effective, especially for those group-oriented cultures.”