In recent years the National Labor Relations Board (NLRB) has issued numerous opinions that decidedly favor employee rights to engage protected activity under the National Labor Relations Act (NLRA) over employer rights to manage conduct in the workplace. However, a recent decision by a NLRB administrative law judge that Cooper Tire & Rubber violated the NLRA by unlawfully terminating an employee who made overtly racist statements on a picket line has many employers deeply troubled about how far the Board is willing to subordinate employer rights in the workplace.

The Facts: Following the expiration of Cooper Tire’s Collective bargaining agreement with the United Steelworkers, Cooper hired temporary replacement workers at its Findlay, Ohio plant until a new agreement was reached.   In response, the Union set up numerous picket lines at the facility and chanted various “scab” comments to the replacement workers, many of whom were African-American, as they crossed the picket line.   However, union member Anthony Runion was caught on camera yelling racist comments to the replacement workers, including the following: “Hey, did you bring enough KFC for everyone?”, “Hey, anybody smell that? I smell fried chicken and watermelon.”   The company terminated Runion for making racist comments in violation of its anti-harassment policy, and the union’s grievance of the termination was denied at arbitration.

The NLRB’s Ruling: On appeal to the NLRB, the Administrative Law Judge ruled that the Cooper’s anti-harassment policy was not controlling. Rather, the Judge reasoned that Runion was discharged for a reason prohibited under the under the National Labor Relations Act – the protected activity of engaging in picketing. In so doing, the Judge observed that while Runion’s comments were indeed racist and reprehensible, his conduct “did not tent do coerce or intimidate employees [crossing the line], nor did they raise a reasonable likelihood of an imminent confrontation . . . they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The Judge noted that serious acts of misconduct during union activities can negate the protections otherwise available under the NLRA, this was not the case here, and thus the statute’s protections trumped the company’s anti-harassment policy.

On July 15, 2015 the U.S. Department of Labor (DOL) issued an Administrator Interpretation aimed at eradicating what the DOL perceives as widespread improper misclassification of “employees” as “independent contractors” in violation of the Fair Labor Standards Act (FLSA). According to the DOL, misclassifying workers as independent contractors results in workers being deprived of important protections such as minimum wage, overtime compensation, unemployment insurance and workers compensation benefits available to employees. The DOL also pointed to the loss in payroll tax revenues to the government and the intentional misclassification by some employers to cut costs and avoid compliance with labor laws. Citing the “economic realities test” used by the courts to determine whether a worker is an employee or independent contractor under the FLSA, the DOL declared that “in view of the expansive definition of ‘employ’ under the Act, most workers are employers under the FLSA.”

The DOL’s expansive interpretation “employ” under the FLSA: The FLSA simply defines “employ” as “to suffer or permit to work.” Historically, the multi-factored “economic realities test” has been applied to determine whether an employer “suffers or permits” an individual to work within the meaning of the FLSA. The economic realities test considers whether:

• the work being performed is an integral part of the company’s business

In its recent landmark ruling in State v. Saavedra, the New Jersey Supreme Court ruled that a former school board employee who was pursing discrimination and retaliation claims against the school could be criminally prosecuted for removing confidential school documents she claimed would aid her in pursuing those legal claims. This decision was somewhat of a surprise in light of the court’s 2010 ruling in Quinlan v. Curtiss-Wright Corp., that an employee’s theft and use of confidential personnel documents to assist her discrimination lawsuit against her employer was protected activity under the New Jersey Law Against Discrimination (LAD).

The upshot if these two rulings is that while an employee who steals corporate documents may not necessarily be fired for doing so, they might be subject to criminal prosecution under certain circumstances.

The Facts: Ivonne Saavedra was a clerk for the North Bergen Board of Education (the Board) who filed suit against the Board alleging discrimination and retaliation claims in violation the LAD and the Conscientious Employee Protection Act (CEPA). During discovery, Saavedra produced over 350 documents, including original and copies of confidential documents in violation of Board policies. Many of the documents contained sensitive educational and medical information about students, information that the Board was prohibited from disclosing to third parties by federal and state law. The Board notified the Hudson County prosecutor who in turn secured an indictment against Saavedra for official misconduct and theft. Saavedra efforts to dismiss the indictment were unsuccessful at the trial and appellate level, and the Supreme Court affirmed.

A recent decision from the Fourth Circuit Court of Appeals (a federal court with jurisdiction over MD, NC, SC and VA) is a stark reminder to employers of the consequences of failing to appropriately respond to any and all claims of unlawful workplace harassment no, matter what the source. In Pryor v. United Air Lines, Inc. (United), the Fourth Circuit vacated summary judgment entered for United by the court below, noting that the company’s response to an anonymous violent and racially-charged note left for an employee was inadequate to shield the it from liability for creating a racially hostile work environment.

The Facts: In January 2011 July Renee Pryor, an African-American flight attendant for United Airlines, Inc. at is Dulles Airport facility, found an anonymous note in her company mailbox located in a secure mailroom restricted to United employees. The note contained numerous racial slurs and claimed to be a hunting license permitting the holder to “hunt & kill N****** . . . day or night, with or without dogs.” The note also contained an image of a lynching along with the words “this is for you.” Prior was frightened by the note an immediately shoed it to her supervisor, who told her he was “sorry” but there was not much United could to because there were no security cameras in the mailroom. The supervisor then gave Pryor an incident report to fill and told her that the report, along with the racist note, would be provided to security and the base manager. Unfortunately, the supervisor did not comply with United’s Harassment & Discrimination Policy that instructed supervisors to immediately report all complaints to the Employee Service Center (ESC) who would conduct an investigation into the claims.

Thereafter, United Management engaged in a series of missteps, including the following:

For nearly 30 years the National Labor Relations Board (“NLRB” or “Board”) has reasoned that two businesses can only be deemed “joint employers” – and thus jointly responsible for purposes of collective bargaining and unfair labor practices – upon a showing that the companies exercised actual, direct and substantial control over the terms and conditions of employment of the employees in the other entity. Factors such as the right to hire, terminate, discipline, supervise and direct employees were relevant to the level of control assessment, and theoretical, limited or routine control over workplace activities of the other was generally deemed insufficient.

In a decision that may have sweeping implications for companies that subcontract work through staffing agencies or other third party vendors, the NLRB has announced a new standard that will result in many more companies being deemed “joint employers” of their third-party contractors. The Board’s expanded joint employer standard will also have implications for franchisor/franchisee, parent/subsidiary and other corporate relationships.

The New “Direct or Indirect” Control Standard: In a significant departure from established precedent, a 3-2 majority in Browning-Ferris dramatically lowered the standard for establishing a “joint employer” relationship. At issue in the case was whether Browning Ferris Industries was a joint employer with Leadpoint, a staffing services company, in a union representation election among Leadpoint workers who staffed conveyor belts in Browning-Ferris’ plant. The union already represented Browning-Ferris’ employees at the plant.