Court: No First Amendment Protection for Teacher’s Blog

According to a report in the Philadelphia Inquirer, a federal Court has ruled that a Pennsylvania School District did not violate the free speech rights of a teacher when it took adverse action against her for comments made on a personal blog.

Natalie Munroe, a teacher in the Central Bucks School District, maintained a personal blog on which she referred to her students as “frightfully dim,” “utterly loathsome,” and “whiny.”  Although she didn’t mention any students by name and even tried to take steps to write anonymously, the District discovered the posts in 2012 and disciplined her.  She sued the District, claiming that she had a first amendment right to the speech since it was done outside of work.

The federal court disagreed with Ms. Munroe, acknowledging that although public employees do have some free speech protection, the protection is not unlimited.  Although there have only been a handful of cases like this, involving public employee speech online, Courts have addressed free speech issues like this for several decades, making clear that public employers do not violate the Constitutional free speech rights of employees by disciplining them for speech that is not on a matter of public concern.  Here, the Court pointed out that criticizing students online is so disruptive, and of such little value to public discourse, that the District’s action cannot be said to violate any free speech rights.

An appeal was promised by the teacher, but that will be a very uphill battle for her.  As should be intuitive, public employees should be careful about what they post online, while public employers should consult counsel before acting with respect to employee social media activity.

NLRB: Northwestern Players Are Employees, Can Vote on Union

Wednesday night, a Hearing Examiner in the Chicago regional office of the National Labor Relations Board ruled that scholarship football players at Northwestern University are “employees” of the University and therefore are eligible to vote in an election to determine whether or not they want to form a labor union.

I previously reported that a group of players had filed a petition with the NLRB to form a union, and that the Board held a hearing to determine whether or not they were eligible to do so.  The decision by the Regional Office would set a profound precedent, certain to alter not only the nation’s labor law but also the face of intercollegiate athletics.

According to a report from ESPN.com, officials from Northwestern have said they will appeal the decision to the full NLRB in Washington, DC.  The ESPN report also quotes officials from other athletic conferences and from the NCAA expressing disappointment with the decision.

In short, the Hearing Examiner concluded that the players provide services (playing football) in exchange for compensation (a scholarship), in a context in which the alleged employer exercises significant control over the work.  He concluded, despite objections from the University, that the players are not primarily students who play football but instead are primarily football players who happen to attend some classes when they have time.

The case is far from over, because even if the University is unsuccessful in its appeals, the next step would be for the players to vote to determine whether a majority wish to form a union.  Either way, this case will continue to raise questions about the state of big-time college athletics and will impact the labor law as well.

Obama to Order Change to Overtime Exemption Rules

President Obama is expected today to expand his economic agenda by announcing an effort to increase overtime for a large number of American workers.  According to a report from the New York Times, President Obama will direct the Labor Department to amend regulations implementing the Fair Labor Standards Act.

The Act requires that overtime be paid for hours worked in excess of forty in a workweek, but it also exempts certain “white collar” positions held by executive, administrative and professional employees.  In order for an employer to take advantage of the exemption, and not pay overtime compensation, the employee currently must be paid on a salary basis in an amount of at least $455 per week.  It is that $455 threshold that President Obama will seek to change, for the first time since it was raised to that level by the Bush administration in 2004.  By increasing that threshold again, President Obama can increase the overtime entitlement to millions of workers.

Employers, of course, will worry about the increased cost of employing workers, while experts warn of unintended consequences like employers cutting back on their numbers of employees.

When considering the exemptions, it is always important to remember that, despite common misconception, it is not sufficient that an employee be paid on a salary basis in order to be exempt from overtime requirements.  It also is necessary that the employee’s job consist of certain duties, determined by the particular exemption sought.

The process of amending the regulations is not necessarily a fast one, so even if a chance is made to the exemptions, it will not take effect for quite some time.  Stay tuned for more updates as this matter develops.

Northwestern NLRB Case Demonstrates Problem with “Card Check”

On January 28, Northwestern football players filed a petition with the National Labor Relations Board, seeking to form a labor union.  Today, the NLRB is holding a hearing to determine the appropriateness of the petition and the proposed bargaining unit.  It is likely that one of the main arguments to be raised by the University is that these players are not eligible for participation in a union since they are not “employees” as that term is defined by applicable law.  Only employees are entitled to form unions.

A recent report from the Daily Northwestern provides an interesting glimpse into the circumstances that led to this unprecedented test case and the path that led to today’s NLRB hearing.  Interesting, although not surprising, is the report of how the players-only meeting – that included the pro-union pitch to the players – was conducted.  The meeting was necessary in order to gain signed authorization cards from 30% of the proposed unit (the team’s 85 scholarship athletes), since the NLRB rules require that this minimum level of support be shown in order to file the representation petition.

One unnamed player describes the meeting that occurred two days prior to the announcement that the petition had been filed.  From the article:

“According to the current player, the decision to sign union cards was brought to the team on Jan. 26, two days before the [union] announcement. The current player said he didn’t “know much at all” about the process leading up to the vote.”

One graduating player described the union sales pitch to the players like this:

“‘From an outside perspective, they pumped them with all this information about how [the current situation] is wrong, how this needs to be changed, and then immediately after, asked them to sign these cards. It really gave no one time to process the information,’ the graduating senior said.”

This is not unusual.  As should be expected, the union is making a sales pitch and rarely if ever provides a complete picture of what unionization will mean for the proposed unit.  For that reason, it often is not hard for a union to obtain signed authorization cards from 30% of a proposed unit.

That is where “card check” comes in.

The term “card check” refers to an employer recognizing the union based on receipt of signed authorization cards from more than 50% of the employees in the proposed unit.  Currently, an employer may – but is free not to – recognize the union voluntarily in that case, but if the employer refuses then the NLRB conducts a secret ballot election to determine whether there in fact is majority support for the union.

Some elected officials in recent years, including President Obama during his candidacy for President, have promised to amend the law to require employers to recognize the union based on a showing of signed authorization cards from 50% of the unit.  The problem is that employees often sign the cards without full information, not always understanding the implications of doing so.  If Northwestern football players – no slouches academically by any stretch – may not have understood the implications of the cards or needed more time to process the issues, then certainly many others would as well.

A recent case in Tennessee illustrates as well the danger in relying on card check only.  The United Auto Workers presented a Chattanooga Volkswagen plant with a request to recognize the union based on an alleged majority having signed authorization cards. The company refused, and a secret ballot election was held.  Last week, the Volkswagen workers voted to reject the UAW.  Either the claim of majority status was false – or coerced, or additional information learned by employees through the course of the election period leading up to the secret ballot election resulted in a more informed decision and a rejection of the union.  Had card check rules been mandatory there, or had the employer voluntarily relied on the cards, the majority’s wishes would have been ignored as a union would have been certified without actual majority support.

The Northwestern case illustrates again how easy it is to obtain signed authorization cards, confirming why card check legislation, requiring that an employer recognize a union based only on signed authorization cards and without a secret ballot election, is so dangerous to employee rights.

There are going to be other interesting issues to watch with this Northwestern case as the hearing concludes today.  Stay tuned for more developments there.

Unemployment Awarded After Court Finds Claimant’s Participation in Fight Justified

In Miller v. Unemployment Compensation Board of Review, 2014 Pa.Commw.LEXIS 48 (Pa.Cmwlth. 2014) two employees were dismissed from employment following an altercation that became physical.  In December 2012, an off-duty employee confronted an on-duty employee over the use of a garage bay on the employer’s premises.  The on-duty employee attempted to open the bay door and was confronted by the off-duty employee asserting “This is my bay.  You need to go somewhere else.”  When the on-duty employee explained that he needed to use the bay for a customer repair and there was no need for the two to fight, the off-duty employee pushed the on-duty employee’s hands off the chain on the bay door, grabbed his shirt inquiring “You want to live?”  The off-duty employee then shoved him backwards into a tool cart.  The on-duty employee responded by pushing him back.  Both employees were fired for fighting, the off-duty employee for instigating the altercation and the on-duty employee for not retreating when space was available to retreat.

The on-duty employee applied for unemployment compensation benefits.  The UC Referee concluded that the on-duty employee was dismissed for willful misconduct, denying him benefits.  The on-duty employee appealed.  On January 9, 2014, the Commonwealth Court issued a decision reversing, concluding that his push of the off-duty co-worker was an “instantaneous and reflexive action” to protect himself against an assault and reasonable under the circumstances.    This case is a reminder that employers bear the burden of proof in willful misconduct cases and benefits may be awarded if an employee can prove that his actions are reasonable or justified under the circumstances.