scmllp logo red 275

Recent Developments in Employment Law – May 2013

There are a number of recent developments in employment law of which you should be aware and that have been generating a variety of questions.  These include:


Please click here for the new I-9 form.  Note that this form should be used starting May 7, 2013.

The new form contains two pages and the notation “Rev. 03/08/13” in the lower left hand corner.  Employees must complete the first page and Employers must complete the second page.

Please note that audits by Immigration & Customs Enforcement have increased substantially and you should conduct your own reviews of I-9s to insure that they are completed correctly.  I-9s must be received from every new hire and they should all be maintained in a separate file.


Please click here for Newly Revised FMLA Policy Statement.  Note that this statement should be used immediately.



Please click here for a Sample Social Media Policy.  Note that this form should be used immediately.

Beware Overbroad Social Media Policies

Karl Knauz Motors, Inc. d/b/a Knauz BMW, 358 N.L.R.B. No. 164 (Sept. 28, 2012)
An Illinois BMW dealership maintained a rule stating:

b) Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

A salesman was discharged for revealing embarrassing information about an incident of negligence at another dealership owned by the same employer. He had also published on social media mocking comments about the cheap hot dogs and cookies provided to buyers at a dealership event.  The NLRB found that his disparagement of the hot dogs, chips and cookies was protected under the Act and found the rule regarding courtesy and language affecting the reputation of the Dealership violated the Act.

The NLRB found this rule unlawful because, “(A)n employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). If the rule explicitly restricts Section 7 rights, it is unlawful. Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004). If it does not, the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”

The Board found the rule unlawful because, “(E)mployees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of  the Dealership” as encompassing Section 7 activity, such as employees’ protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the Respondent— that object to their working conditions and seek the support of others in improving  them.   One important issue involving the rule was that nowhere did the employer state that communications protected by Section 7 of the NLRA were excluded from its reach.
Second, the Board held that, “An employee reading this rule would reasonably assume that the (Employer) would regard statements of protest or criticism as “disrespectful” or “injur[ious] [to] the image or reputation of the Dealership.”

Nevertheless, the discharge was upheld because his comments about negligence at an affiliated dealership were not protected by the Act.


Facebook Solicitations Protected

Hispanics United of Buffalo Inc., 359 NLRB No. 37 (December 14, 2012)

Section 7 of the National Labor Relations Act gives employees the right to organize, to form, join, or assist labor organizations and to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

An NGO, Hispanics United, violated the NLRA by discharging 5 employees for posting comments on Facebook in response to criticism of their job performance. In the first posting an employee solicited co-workers for support in defending themselves against criticism that they “don’t help clients enough.”  The discharged employees posted comments of support in contravention of the allegations relating to their work.  The NLRB found that they had made “common cause” with the first poster and therefore were acting in concert with regard to protected activity. 

The full text of Section 7 of the NLRA states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment. . .

Therefore, an employee who complains to his manager about his wages is not engaging in protected activity, but if he seeks mutual aid or protection by complaining to his co-workers in person or in social media, that is protected activity and he cannot be disciplined for it.


 The NLRB Unable to Issue Effective Decisions

Noel Canning v. NLRB, US Circuit Court, DC (January, 2012)
The underlying facts of this case involve a union’s charge before the NLRB that a company named Noel Canning had refused to execute and apply the terms of a collective bargaining agreement following its negotiations with a union.  Noel argued that the parties had never reached an agreement. The NLRB ordered Noel to sign and abide by the agreement.

The NLRB is a 5 member Board that can only issue decisions when it has a quorum of three.  But, at the time the Board heard this matter and issued its decision, it was comprised of one Board member approved by the Senate and two Recess Appointments. Noel appealed the NLRB’s decision to the U. S. DC Court of Appeals asserting that the Recess Appointments were in violation of the US Constitution and therefore, the Board did not have a quorum and its decisions were not enforceable.

The policy of separation of powers is a crucial tenet of the US Constitution which establishes three divisions of government, each of which acts as a check or a balance on one or both of the other branches of government in order to prevent abuse of power. While the President may recommend the appointment of principal officers of the federal government such as the five members of the NLRB, he may do so only with the advice and consent of the Senate. The Recess Appointments Clause permits the President to make temporary appointments without Senate approval when the Senate is in recess. On January 4, 2012, while the Senate was holding “pro forma” sessions, the President named three new Board members; Terrence Flynn, Sharon Block and Richard Griffin. In Noel Canning, the DC Circuit Court of Appeals invalidated these appointments stating that the Congress was not in recess at the time the appointments were made and that, during a recess, the President can only fill vacancies that arose during the recess in which the appointments were made.

As a result of this decision, all decisions of the NLRB while the Recess Appointments were in place, may be appealed to the DC Circuit and be declared invalid. 

The NLRB has appealed the Noel Canning decision to the US Supreme Court.


Gender Identity Protected Under Massachusetts

Since July of 2012 “gender identity” has been a protected category under Massachusetts’ employment, housing, credit, public education anti-discrimination laws and under Massachusetts’ hate crimes laws. All of these laws also protect several other characteristics, including sexual orientation, disability, sex, age, race, ancestry and religion.  Still, many employers have not yet changed their Anti-Discrimination or Anti-Harassment Policy Statements to include “gender identity.”  Such policy statements and publications should be changed immediately.

 “Gender identity” is defined as a person’s “appearance or behavior, whether or not that gender –related identity or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” The law allows a person to demonstrate his/her gender identity by providing evidence including: medical history; care or treatment of the gender identity; consistent and uniform assertion of the gender identity; or any other evidence that the gender identity is sincerely held as part of a person’s core identity.    The law includes several ways that a person may demonstrate his/her gender identity though it does not require proof of any particular gender identity for protection.

The employment anti-discrimination law applies to employers (state, municipal or private) who have at least six employees (not including the owner or certain family members). It forbids employers from refusing to hire a person, or discharging them, or discriminating against them “in compensation, or in terms, conditions or privileges of employment” because of his/her gender identity. The law also applies to employment agencies and labor organizations (e.g. unions).

The new transgender rights law does not contain explicit protections for gender identity. However, transgender individuals who face discrimination may, in some circumstances, be able to bring sex, sexual orientation or disability discrimination claims. If the adverse action results from sex stereotyping, that is the expectation that a person conform to the social stereotypes of how a “real man” or “real woman” must act, then this can be the basis for a sex stereotyping claim.   There are limits to the ability to bring such claims, e.g., restrooms that are segregated by sex are exempt from the sex discrimination prohibitions under the public accommodations law.


Sexual Harassment or Violation of NLRA
Company Policy in Abeyance During Election Campaign

Fresenius USA Manufacturing, 359 NLRB No. 138 (September 19, 2012)
A union worker’s vulgar, threatening and offensive messages to female co-workers did not justify his termination during the run up to a de-certification union election.

Two weeks before the vote, union newsletters were placed in an employee break room. Scrawled on the papers were handwritten messages saying, “Dear Pussies, Please Read!”,  “Hey cat food lovers, how’s your income doing?”, and “Warehouse workers, RIP.”  Several women complained to management that the scrawled messages were threatening, vulgar and offensive and said they recognized the handwriting as belonging to Kevin Grosso, a union supporter. Following an investigation in which Grosso lied about having written the statements, he was fired and filed an unfair labor practice charge with the NLRB.

At hearing, the company argued that it had a duty under federal law as well as its own anti-harassment policies to investigate such statements and take action. The Administrative Law Judge agreed. Grosso appealed to the NLRB which reversed admitting, “An employee’s otherwise protected activity may become unprotected if in the course of engaging in such activity, the employee uses sufficiently opprobrious, profane, defamatory or malicious language.” But, despite the sexually offensive language and Grosso’s having lied to management, the Board found the comments at issue were impulsive, not premeditated, and occurred at a warehouse not unused to profane speech.


Massachusetts Wage & Hour issues may be settled privately for consideration in properly worded settlement agreements.  Include in all Settlement Agreements:

The employee releases any claims he/she may have under Massachusetts General Laws, Chapter 151 B, the Massachusetts Wage Law, Chapter 149 or under any other federal, state or common law relating to employment including discrimination, wages, hours, or any other conditions of employment.

If you have any questions, please do not hesitate to contact us.

Stoneman, Chandler & Miller LLP
99 High Street
Boston, MA 02110
617-542-6789 phone
617-556-8989 fax

This client alert, which may be considered advertising under the ethical rules of certain jurisdictions, should not be construed as legal advice or a legal opinion on any specific facts or circumstances by Stoneman, Chandler & Miller LLP and its attorneys. This client alert is intended for general information purposes only and you should consult a Stoneman, Chandler & Miller LLP attorney concerning any specific legal questions you may have.  © 2013 Stoneman, Chandler & Miller LLP