806 ADVERSE EMPLOYMENT ACTIONS AND OFF-DUTY CONDUCT

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1 806 ADVERSE EMPLOYMENT ACTIONS AND OFF-DUTY CONDUCT Jessica A. Foster The Mentor Network Jeffrey A. Dretler Fisher & Phillips LLP Julia Coyne Nike, Inc. Richard A. Millisor Fisher & Phillips LLP

2 Overview Employee off-duty conduct has been a hot topic in recent years..and becoming hotter. Advances in technology enable employers to know more about their applicants and employees. Changes in workplace dynamics and technology are blurring the line between on and off duty. 2

3 Types of off-duty conduct Legal but potentially undesirable conduct o Cigarettes, alcohol, marijuana Social media activity Political activity Questionable behavior o Risqué photos, unpopular opinion 3

4 Types of off-duty conduct Financial responsibility Illegal conduct o Arrest or conviction for DUI, domestic violence, fraud Conduct while on medical or disability leave 4

5 What are the legal boundaries? Constitution (federal or state) for public employees State statutes which protect specific employee off-duty conduct o All legal consumer products o Firearms, tobacco, marijuana o Prohibiting employers from asking for social media passwords o Limiting access to or use of criminal background checks or credit histories 5

6 What are the legal boundaries? NLRA State statutory or common law privacy rights Collective Bargaining Agreements o Just cause requires nexus between off-duty activity and interference with workplace Employment Agreements o Varying definitions of termination for cause Title VII, ADA and state anti-discrimination laws o Duty to provide reasonable accommodation (e.g., disability, religion) 6

7 What are the legal boundaries? Risk for employers of disparate treatment (discrimination) Risk for employers of retaliation for other protected conduct o Making charge of discrimination o Wage and hour complaint o Requesting reasonable accommodation o Whistleblower o Filing worker s compensation claim o Making OSHA complaint 7

8 What are the legal boundaries? Public employees enjoy constitutionally protected Free Speech Analysis Is employee speaking as private citizen (not in course of duties) on a matter of public concern? Does employer s interest outweigh employee s Free Speech rights? 8

9 ORS 659A.320 Prohibits employers from obtaining or using an applicant s or an employee s credit history for employment purposes. Exceptions: o Federally insured banks o Law enforcement agencies o Substantially related to job Fair Credit Reporting Act 15 USC 1681 et seq. Applies with outside investigators o Notice o Authorization o Notice before adverse action o Notice after adverse action 9

10 Marijuana and the Workplace 10

11 Marijuana and the Workplace Increasing momentum at state level to decriminalize and/or authorize medical marijuana use Alaska, Colorado, Oregon, Washington, and the District of Columbia have legalized certain types of recreational marijuana use Various laws offer some protections to users of legal and/or medically prescribed substances 11

12 Federal Law Trumps State Law Marijuana is illegal under federal law Gonzalez v. Raich (2005 U.S. S.Ct): Regardless of any state s laws, federal government may regulate marijuana grown, sold, and consumed within state. 12

13 24 Jurisdictions with Medical Marijuana Laws Alaska Minnesota Arizona* Montana California Nevada Colorado New Hampshire New Jersey Connecticut New Mexico Delaware* New York* Hawaii Oregon Illinois Rhode Island* Maine* Vermont Maryland Washington Massachusetts Washington, D.C. 13 Michigan *Legislation expressly includes employment and/or antidiscrimination protections

14 Coats v. Dish Network, LLC 350 P.3d 849 (Col. Supreme Ct. 2015) Employee with lawful medical prescription tested positive for marijuana and was terminated. Employee sought protection under Colorado s Lawful Off-Duty Activities Statute. Colorado Supreme Court upheld termination where marijuana is still illegal under federal law. 14

15 Courts To Date Have Universally Upheld Terminations In Violation of Company Drug Policies Casiasv. Wal-Mart Stores, Inc., 695 F.3d 428 (6 th Cir. 2012): (Upholding termination of employee who tested positive in violation of company drug policy despite valid prescription for medical marijuana). Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, 257 P.3d 586 (Wash. 2011) (Same). 15

16 Application in Unionized Workplace King Soopers, Inc., 131 Lab. Arb. Rep. (BNA) 459 (2012) (Sass, Arb.): No just cause to discharge employee whose hair test showed presence of marijuana in his system, where hair test did not show within any reasonable degree of probability that employee had illegal drugs in system at time of on-job accident, or at time behavior at work gave employer probable cause to test; hair test showed usage from period of three months. BASF Catalysts, 130 Lab. Arb. Rep. (BNA) 1124 (2012) (Hoffman, Arb.): No just cause to terminate 26-year employee with good record who was found in possession of a rolled marijuana cigarette and less than one ounce of marijuana in his car, but 30-day suspension imposed. 16

17 Facebook Post Shows RN Smoked Marijuana While Visiting Friends in Colorado What Can/Should Employer Do? 17

18 Social Media and the Workplace 18

19 Social Media and the Workplace Facebook claims to enable fast, easy, and rich communication. However, with fast and easy communication comes the inherent risk of posting statements and pictures one would not normally tell or show off to their friends and even, sometimes, to the general public. -- Graziosiv. City of Greenville, 2013 U.S. Dist. LEXIS at **2-3 and n. 1 (N.D. Miss. Dec. 3, 2013) (without adopting Facebook s self-serving assertion that they enable rich communication). 19

20 NLRA Section 7: Employees shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 8(a)(1): It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of this Act. 20

21 Social Media and the NLRB NLRB Acting General Counsel Memoranda August 18, 2011 (First Report) (14 cases) January 25, 2012 (Second Report) (14 cases) May 30, 2012 (Third Report) (7 cases) NLRB Decisions September 28, 2012 (termination of car salesman upheld because motivated by unprotected Facebook post making fun of car being driven into pond, not the protected post concerning hot dog stand and sales commissions). December 14, 2012 (unlawful to fire 5 employees of non-profit who participated in Facebook postings about coworker who intended to complain to management about work performance). 21

22 Social Media and NLRB NLRB General Principles Employer policies should not be so sweeping that they prohibit the kinds of activities protected by federal labor law, such as the discussion of wages or working conditions among employees. An employee s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees. Employers Beware: Current NLRB broadly construes protected activity. 22

23 NLRB & Employer Off-Duty Conduct Policies March 18, Report of the General Counsel Concerning Employer Rules Employer policies should not: Prohibit all media contact (but may provide that only designated employer reps can speak for the company) Prohibit all use of Company logos or photos of employees in uniforms Prohibit all rude or discourteous behavior Prohibit all criticism of Company or employees Tell employees when in doubt, do not post, and seek management approval Note: Savings clause is not enough to save an otherwise overbroad policy. 23

24 NLRB & Employer Off-Duty Conduct Policies Employer policies may: Prohibit bullying, threats, discrimination, etc. Prohibit disclosure of trade secrets 24

25 Recent NLRB Action Baylor Health Care System agreed to rescind social media policies which the NLRB considered overly broad, and post and an NLRB Notice to all of its 35,000 employees throughout Texas. (Feb. 12, 2015) (NLRB Fort Worth Regional Office). Lytton Rancheria of California d/b/a Casino San Pablo 361 N.L.R.B. Slip. Op. 148 (Dec. 16, 2014) (Upholding casino s Nogossip policy that prohibited gossiping about team members, including supervisors, managers, directors). 25

26 Protected, Concerted Activity? EMT #1 is fired for telling a patient that the Company has substandard equipment/vehicles and complains on her Facebook page that Company has substandard equipment. EE#2 responds on Facebook page: You may want to get a lawyer and take them [Company] to court. Employer fires EE#2 for violation of its social media policy which prohibits media posts which could discredit the Company or damage its image. Protected, concerted activity? 26

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