NLRB Abandons Notice Posting Rule

This week, the National Labor Relations Board (NLRB) announced that it has abandoned its rule, adopted several years ago, that would require employers to post notice of employees’ rights under the National Labor Relations Act. That Act provides basic rights for employees to form, join or assist – or refrain from joining or assisting – labor unions.

The NLRB had adopted the rule that would have required employers to post a notice, in a manner similar to other workplace notices, like with the Fair Labor Standards Act (FLSA) or the Family Medical Leave Act (FMLA).  Several federal courts had invalidated the rule, noting that the NLRB does not have the power to make such a rule.  The Courts essentially concluded that the rule was beyond the scope of the powers granted to the NLRB by the Act and that any notice posting requirement should only be enforceable if Congress included such a requirement in the actual law itself.

In a press release this week, the NLRB noted that it has dropped any appeals with this issue, essentially confirming that the rule no longer is in effect.  The NLRB went on to urge employers to provide the notice voluntarily, saying:

The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act.  Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.

While the NLRB no longer will try to require that employers post notice of the employee’s rights, this does not have any impact on the actual rights that exist.  The NLRB continues to be vigilant in enforcing the employees’ rights to form and assist labor unions, and you should contact your counsel if there are any questions about what rights you or your employees do have.

Title VII Protection Available for ‘Brony’ Status?

According to this article from Gawker, a thirty-something father claims he was fired for being a “brony.”

In case the term is new to you, urbandictionary.com defines “brony” as “A name typically given to the male viewers/fans … of the My Little Pony show or franchise.”

According to the report, the anonymous ‘brony’ had displayed his My Little Pony affinity in the workplace and had been told to stop. After repeated incidents of being told to stop displaying computer wallpapers or engaging in discussions about his love of My Little Pony, he claims he was fired for being a brony.

Here is the legal question – can the employer fire him for that reason? Initially, the answer would appear to be yes. Title VII prohibits discrimination in employment decisions on the basis of an individual’s membership in certain protected classes, like race, religion, national origin, etc. Not surprisingly, ‘brony’ status is not explicitly protected in the law, so it would appear that firing an employee for expressing a love of the children’s characters would not be illegal.

However, Title VII does prohibit discrimination on the basis of gender, and that prohibition has been interpreted to prohibit what is known as “gender plus” discrimination. In other words, discrimination that is based on gender stereotypes and the individual’s failure to fit into those stereotypes can be actionable.

In this case, the question would be whether or not the termination was based on the employee’s failure to conform to a gender stereotypical view that men should not be fans of My Little Pony. If the termination was based on a view that it is unprofessional for adults of both genders to display My Little Pony items in the workplace, then it is not likely to be a violation of Title VII, but if it could be demonstrated that the employer’s action was limited to men only and the view of “gender appropriateness,” the employee may have a claim.

The report from Gawker does not indicate whether the employee plans to sue, but all employers need to remember that employment decisions that are made differently for men and for women can possibly lead to liability if based on gender stereotypes.

Federal Agencies Publish Guidance Regarding Treatment of Same-Sex Marriage

In light of the recent US Supreme Court decision in US v Windsor striking down provisions of the Defense of Marriage Act (DOMA), President Obama directed all federal agencies to update regulations and other published guidance, in order to address the fact that DOMA no longer prohibits federal recognition of same-sex marriage.

This week, the IRS-issued Revenue Ruling 2013-17 took effect, addressing how such marriages will be treated for tax purposes. In short, the IRS has decided to use what is known as the “state of celebration” rule. Under this rule, the IRS will consider a person to be married if the individual entered into a same-sex marriage in a state that recognizes such marriages. his is true regardless of whether the person actually resides in a state that recognizes or authorizes same-sex marriage.

Wednesday, September 18, the US Department of Labor released Technical Release 2013-04, in which the DOL also adopted this “state of celebration” rule for purposes of defining the terms “spouse” and “marriage” under employee benefit plans. Again, under this rule, a person is considered a spouse, for such purposes, if a marriage was celebrated in a state that recognizes same-sex marriage regardless of where the spouses actually reside.

This is in contrast to the “state of residency” rule, which applies in some other contexts, such as the FMLA. According to this rule, a person can be considered a “spouse” only if the person resides in a state that recognizes the marriage.

Employers should be aware, then, that these and other new federal guidelines will impact the application of various employer policies.

SCOTUS Clarifies Definition of “Supervisor” in Harassment Cases

SCOTUS clarified the definition of “supervisor” in sexual harassment cases under Title VII of the Civil Rights Act of 1964, for purposes of determining whether an employer is vicariously liable for an employee’s acts of sexual harassment. According to the Supreme Court, the defining characteristic of a “supervisor” is one who has the authority to take tangible employment action against the victim. The Court opined that, through its clarification, the question of supervisor status will often be able to be determined by the court, as a matter of law, prior to trial. Vance v. Ball State University, 133 S.Ct. 2434 (2013).