Earlier this year, speculation and educated guesses gave way to NLRB General Counsel Advice Memoranda on how the NLRB will address unfair labor practice charges challenging so-called Facebook firing cases. Now we have our first charge that actually has gone to hearing and resulted in an Administrative Law Judge decision.

In Hispanics United of Buffalo, Inc., the employer, a not-for-profit corporation that renders social services to economically deprived residents of Buffalo, New York, terminated five employees for their comments on Facebook after a co-worker had raised concerns about the job performance of other HUB employees. Apparently concerned that the co-worker would bring her concerns to management, one of the five employees posted the following on her Facebook page:

[Co-worker] feels that we don’t help our clients enough at HUB I about had it!
My fellow coworkers how do u feel?

Continue Reading First “Facebook Firing” Case Decided by NLRB Administrative Law Judge

Under Ohio law, employees may sue their employer to recover damages for an employer intentional tort – even when the injuries are otherwise covered by workers’ compensation.  Because these cases can be costly to defend, employers historically have purchased commercial general liability policies with “stop-gap” insurance endorsements for years, believing these provisions imposed a duty to defend the employer against an employer intentional tort lawsuit.

On July 6, however, the Ohio Supreme Court decided Ward v. United Foundries, Inc., determining that Gulf Underwriters Insurance Company did not have a duty to defend United Foundries, Inc. under such a stop-gap endorsement in an employer intentional tort action.

Continue Reading Supreme Court Says No Duty To Defend Employer Intentional Tort Claims Under Stop Gap Insurance Endorsements

In earlier posts, we discussed the best time to mediate different types of employment or ERISA matters. Although some disagree, selecting a mediator to facilitate a settlement based on a meeting of the minds may be the most important part of the mediation process. Even though mediation is a party-driven process, the mediator’s knowledge, skill, experience, style and ability to handle the type of individuals involved in the dispute has a substantial impact on the resolution of the dispute. With apologies to Kyra Sedgwick, the goal is to find The Closer.

In most private mediations, the parties and their counsel select the mediator, and bear the burden of selecting an appropriate person to mediate the dispute. In making a selection, there are a number of issues the parties may want to consider.

Continue Reading Looking for The Closer for your dispute. . .

Several days ago, I read the New York Times article reporting that the NLRB’s Manhattan Regional Director was threatening to file a complaint against Thomson-Reuters for allegedly reprimanding an employee who had criticized management on Twitter.
Continue Reading An Appeal for Cooler Heads on NLRB’s Social Media Policy Enforcement

In a scenario that frequently occurs in workplaces across the country, Linda Buck, the vice president of human resources at Proctor Hospital, was asked to terminate Vincent Staub based on information contained in a report from his supervisors that accused him of violating the terms of a “corrective action” disciplinary warning. Relying on this accusation and her own review of Mr. Staub’s personnel file, Ms. Buck decided to terminate Mr. Staub’s employment. Mr. Staub protested to Ms. Buck that his supervisors were hostile to his military obligations as a member of the U.S. Army reserves, but rather than follow up on Mr. Staub’s concern with his supervisors, Ms. Buck simply conferred with another human resources staff member and adhered to her termination decision. Mr. Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) claiming that his discharge was motivated by hostility to his obligations as a military reservist. His contention was not that Ms. Buck had any such hostility but that his supervisors did, and that their actions influenced Ms. Buck’s ultimate employment decision. (This type of case has been referred to as a "Cat’s Paw" case, based on an Aesop’s fable involving a cat, a monkey, chestnuts and fire. Justice Scalia provides more information at footnote 1 of his majority opinion.)

A jury found that Mr. Staub’s “military status was a motivating factor in [Proctor’s] decision to discharge him,” and awarded $57,640 in damages. The Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law because Ms. Buck had relied on more than just the supervisors’ advice in making her termination decision.

Continue Reading Supreme Court Upholds “Cat’s Paw” Liability

The OFCCP has released a new directive – the Active Case Enforcement Directive (ACE)  – to replace the Active Case Management directive (ACM) which was rescinded by OFCCP in December 2010. The ACE procedures will result in more in-depth OFCCP audits and will greatly increase the chances of OFCCP making findings that are adverse to

Wednesday, February 16, 2011
11:30 a.m. – 1:30 p.m. Lunch will be provided.
Capital Club – 41 South High Street, 7th Floor
Columbus, Ohio

An employer’s human resources department can provide one-stop shopping for identity thieves, where they can find personnel records, benefits data, and payroll and tax records all in the same place. What

Updating our previous posts on Thompson v. North American Stainless, the Supreme Court yesterday reversed the Sixth Circuit’s en banc decision holding that an employee who claims he was fired in retaliation for his fiancé’s complaint of sex harassment had an actionable retaliation claim under Title VII. The Supreme Court reversed the Sixth Circuit’s

In a decision issued this morning, the Sixth Circuit held that an Ohio complaint alleging wrongful termination for discharging employees for unionizing activities was pre-empted by the National Labor Relations Act (“NLRA”). Specifically, the court in Lewis v. Whirlpool Corporation upheld the dismissal of the case by the district court based on a lack of subject matter jurisdiction.
Continue Reading Sixth Circuit Holds That Ohio Wrongful Termination Claim Pre-Empted By NLRA