Second Circuit Upholds NLRB’s Reinstatement of Employee Who Posted Profane Blog About Boss’s Mother

June 27, 2017

By Thomas D. Rees

Two years ago, I blogged about a National Labor Relations Board decision restoring an employee’s job after the employee posted a profane blog about his supervisor’s mother- “Can You Insult Your Boss’s Mother at Work and Avoid Dismissal?  Maybe so!”

After a recent Second Circuit decision, we can now change “Maybe so” to “Yes!”  In National Labor Relations Board v. Pier Sixty, LLC, 855 F.3d 115 (2d Cir. 2017), the Circuit Court unanimously affirmed the NLRB’s reinstatement decision.

The original NLRB decision, Pier Sixty, LLC and Perez, 362 NLRB 59 (March 31, 2015), arose after a supervisor issued harsh, loud orders to employees.  Right away, one employee (Perez) posted comments on Facebook calling the supervisor an obscene name.  Then Perez directed obscene Facebook  comments at the supervisor’s mother and “entire family”.  The employer fired Perez.  By a 2-1 vote, the National Labor Relations Board (NLRB) held that the firing violated the National Labor Relations Act, and ordered Perez’s reinstatement, because Perez had engaged in protected, concerted activities.

The factual context of the case is important.  The employer was a New York City caterer.   The employees had complained about management mistreatment.  A union election was imminent.  The employer had imposed a “no talk” rule on employees pending the election.  At  a banquet, the  supervisor loudly told the employee and other servers to “stop chitchatting” and then loudly ordered the staff to “Spread out, move, move” within guests’ earshot.

The supervisor’s order upset Perez.  A co-worker suggested that Perez take a break to cool down.  While on break, Perez posted his  Facebook messages.  After the obscene comments, Perez concluded by saying, “Vote YES for the UNION!!!!!!!”

The NLRB found that Perez addressed supervisory mistreatment of employees and  sought redress through the union election, and so his comments were protected concerted activity.  Perez’s vulgarity was an impulsive act that did not turn his outburst into unprotected activity.  The NLRB also considered whether the employer found the language offensive and prohibited the language, and whether firing Perez was disproportionate to his offense.  The NLRB noted that vulgar language filled the workplace.  (None specifically was directed at others’ families, however.)  Employer rules prohibited profanity, but no such rule was produced during the NLRB proceedings.

The NLRB decision did not end the  battle, however.  The NLRB petitioned to the Second Circuit to enforce its decision.  Pier Sixty petitioned to review and overturn the decision.  The appellate courts’ review of NLRB decisions defers strongly to the agency.  On factual findings, the Second Circuit must uphold the NLRB if “substantial evidence in light of the record as a whole” supports the NLRB.  “Substantial evidence” means “such relevant evidence as a reasonable mind would accept as adequate” to support the NLRB’s conclusion.  On legal issues, the courts have more latitude to overturn an agency but must still give considerable deference to the Labor Board.

Applying these standards, the Second Circuit upheld the NLRB.  The Second Circuit recounted the adversarial labor/management atmosphere at Pier Sixty and the fact that profanity was tolerated in the workplace.  The court also noted that the comments appeared on an online forum, not in front of customers, and that the employee had removed the post after learning that the post was being viewed publicly.  The court did hold, however, that the Facebook post was “at the outer bounds of protected, union-related comments” and referred to the need to be sufficiently sensitive to employer’s legitimate disciplinary concerns.

Given the Second Circuit’s cautionary language, and a possible rollback on pro-union decisions with a new NLRB, the Pier Sixty decision may stand alone for the foreseeable future.  But the issue of what an employer may do to limit workplace speech without violating labor laws will arise again and again in this era of social media communication.

If you have any questions, please contact Thomas D. Rees at 610-275-0700 or via email at trees@highswartz.com.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

 

5 Things You Need to Know About Social Media and Divorce

June 20, 2017By Melissa M. BoydSocial media is a constant presence in our lives. It has become a forum for us to catch up with friends across distances, share our triumphs large and small, and feel more connected to family. As such, social networking can be a positive experience. Yet it can be the bane of your existence if you are in the middle of a divorce or custody matter.With the evolution of social media and the war stories I have encountered over the years as a family law attorney, I have developed a set of rules that I share with all my clients involved in divorce or custody disputes. Perhaps much of this advice goes without saying, but I would rather that my clients be thoroughly apprised of the pitfalls of using social media during a dispute.
  1. Don’t complicate your divorce or custody matter with social networking. Though it may feel natural to share your struggles, or even the details of your new single life, online with social media friends, resist doing so. I recommend that if at all possible, my clients cease the personal use of social media completely during divorce or custody litigation.Remember, however, that while you may be able to deactivate your personal social media accounts, you cannot destroy content shared on the internet during litigation. Spoliation of evidence – that is, withholding, altering, hiding, or destroying of evidence – is just as relevant to civil matters as it is to criminal cases.
  2. If you must use social networking, remember that what you say can and will be used against you. Social media evidence is used in family courts with increasing frequency. For example, a spouse who claims not to have income available for child support might post pictures vacationing with a new partner in an exotic locale, or even buying an engagement ring. Once published, this information can spread quickly.If you have nothing nice to say about your spouse / child’s other parent, say nothing at all. In all but the most extreme cases, when settling a child custody dispute, the presiding judge’s aim will be to ensure that a child is adequately provided for and is able to continue having a good relationship with both parents. You do not want to appear, in a judge’s view, to be a hindrance to your child’s relationship with his or her other parent.
  3. Beware of your frenemies. It is natural for friends of divorcing spouses or polarized parents to pick sides. Be prepared for it and guard your words.
  4. Change your passwords. Don’t use passwords that can be easily decoded. Make sure you have an email account that cannot be accessed by anyone other than you. Change and continually review your privacy settings on social media sites as well. While there are laws to protect privacy and the criminal prosecution of cybercrimes is evolving, you can never be too careful.
  5. A picture is worth a thousand words, and potentially big bucks. So many lies, omissions, and indiscretions are revealed through social media. It is also important to be careful with images of your child; be respectful of your child’s other parent’s wish to keep your child’s identity private from internet consumption.
It is an unfortunate reality that you should expect every detail of your life to be closely examined when you are party to a divorce or child custody matter. It is, however, the current reality. Therefore, my recommendation is that the best way to protect yourself from having information about you subject to interpretation by a court is to refrain from sharing it online at all.To learn more from one of our experienced divorce and child custody attorneys, contact Melissa M. Boyd at 610-275-0700 or by email at mboyd@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

High Swartz Partner Named President of Central Chester County Rotary Club

James B. Shrimp to lead local chapter of Rotary InternationalJames ShrimpNORRISTOWN, Pa. (June 20, 2017) – Full-service law firm High Swartz is pleased to announce that partner James B. Shrimp has been installed as president of the Rotary Club of Central Chester County, located in Lionville/Exton, Pennsylvania.  He is the chapter’s 29th president since its founding in 1988.The club is a chapter of Rotary International, the mission of which is to bring together business and professional leaders at the community level to provide humanitarian service, encourage high ethical standards in all vocations, and help build goodwill and peace around the world.In keeping with the Rotary motto, “Service Above Self,” Shrimp and the Central Chester County Rotary Club provide financial and volunteer support to nonprofits in Pennsylvania and around the world, including Habitat for Humanity of Chester County and the Chester County Food Bank, as well as Project CURE, the largest provider of donated medical equipment and supplies to developing countries worldwide, Operation Honduras, which builds schools and provides cataract surgeries in Honduras, and Rotaplast International,  which provides corrective cleft palate and lip surgeries throughout the world.Shrimp’s passion for helping others also finds expression in his legal practice, which he focuses on employment and commercial disputes, including employment discrimination, wage and hour issues, and restrictive covenants.“It is a critical aspect of being an officer of the court and citizen to give back to the community, and Rotary allows me to give back both locally and internationally,” said Shrimp.He earned a bachelor’s degree at Misericordia University before going on to earn his law degree from Villanova University School of Law.High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the full-service law firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.# # #

Mary Cushing Doherty Honored with PBA Special Achievement Award

Pennsylvania Bar Association recognizes High Swartz family law attorney’s tireless leadership in improving PA divorce law to reduce the harmful impacts on childrenhigh swartzNORRISTOWN, Pa. (June 19, 2017) – The full-service law firm High Swartz LLP is proud to announce that family law attorney Mary Cushing Doherty has been honored with the Pennsylvania Bar Association’s Special Achievement Award, in recognition of her tireless assistance with meeting legislators to address reducing the harmful impact of divorce waiting periods on children.As co-chair of the PBA’s Family Law Section special committee, Doherty worked toward passage of state legislation that would reduce the waiting time for no-fault, unilateral divorce in Pennsylvania from two years to one year. The effort, which took more than four years, culminated in the adoption of Act 102, which went into effect in December 2016.The movement to shorten the waiting period to one year was rooted in studies on child development that found that the longer a family was in legal limbo, the more stress the children endured and the more their development was suspended. Reducing the amount of legal waiting time similarly reduces the amount of parental conflict and allows parents and children to focus on creating their new family dynamic.“During my 35 years practicing family law, I have seen firsthand how the two-year waiting period for unilateral, no-fault divorces harmed families,” said Doherty, who leads High Swartz’s family law practice group. “The extended waiting period produced more tension between parents and forced the children to witness destructive emotional battles. A shorter waiting period enables children to begin the healing process earlier, which is healthier for everyone.”Doherty focuses her practice on all aspects of family law, including divorce, child support and child custody, spousal support and alimony, premarital agreement asset protection, complex property division, and more. She earned a bachelor’s degree at University of Delaware and her law degree from Villanova University School of Law.Founded in 1895, the Pennsylvania Bar Association and its more than 27,000 members continue the association’s tradition of service to the profession and the public, while keeping current with changing legal standards and societal practices, quality of life issues, and evolving technology. The PBA’s Special Achievement Award is given annually to recognize those who have given their time and resources to advance the association and the practice of law in Pennsylvania. High Swartz LLP is a full-service law firm serving clients in the Delaware Valley and throughout Pennsylvania from offices in Norristown and Doylestown. Established in 1914, High Swartz serves the needs of businesses, municipalities, government entities, nonprofits and individuals. With offices in Bucks County and Montgomery County, the full-service law firm provides comprehensive counsel and legal support to individuals and business entities of all sizes across a broad spectrum of industries throughout Pennsylvania and New Jersey. For more information, go to www.highswartz.com.# # #

Cutting the Ties: What You Need to Know About Severance Agreements

June 13, 2017Separating from an employer, even in the best of circumstances, can be a stressful transition.  When the separation stems from a termination or layoff, however, the unexpected nature of the transition only serves to amplify the stress. It is at this highly stressful time that you may be faced with the decision on whether or not to sign a severance agreement.  Unfortunately, these agreements are not always written in the most user friendly fashion.  Despite this potentially confusing drafting, however, once signed a severance agreement is a binding legal contract that you must abide by.  As such, it is critical that you understand everything that you are agreeing to.The provision of severance agreement that  often are  of greatest importance is the amount of any severance payment and how it will be paid out. As a general rule, a severance payment represents one to two weeks of your weekly salary per year of employment (i.e. you may expect to receive a payment representing 2-3 weeks of your salary if you had been with the company for two years).  In addition to this payment, if you have not received any other documentation related you to your termination you should also find provisions regarding the payout of any accrued but unused sick or vacation time, payment of final wages and a discussion of your eligibility for continuing your health insurance pursuant to a Federal law known as COBRA.   It is important that you do not focus all of your attention, however, on what you will be receiving, rather, you must also pay close attention to what you will be giving up in exchange.Sometimes, the stress of losing a job before you had planned on it makes it hard to look past the money being offered  However,  you must fully understand any provision where you are releasing the employer from liability. As a general statement, all severance agreements will include some level of release.  Basically, these provisions prevent you from taking certain actions.  Most prohibit an employee from in the future suing on anything related to the employee’s employment with the company.  Accordingly, if you think there was anything meriting a lawsuit about your employment up to and including your termination, by signing this agreement you  waive the right to file suit. Because this is a very serious waiver, it is advisable to seek legal counsel to get a comprehensive understanding of the situation and your options going forward.  A lawyer would be able to help you assess the validity of your claim and advise you on how to proceed.  If you wait to consult a lawyer until after you sign a severance agreement, you may discover that you have unintentionally given up valuable rights.  Accordingly, as tempting as an immediate severance payment may be, if you believe you have been wronged in such a way to merit a lawsuit, in order to protect your rights you need to fully understand what you are giving away in exchange for a payment.Every agreement is different depending on the employer and the reasons for the separation.  As such there is no one size fits all legal advice for severance agreements because the provisions listed above are only two of a large number of potential components to a severance agreement and release.  Because it is critical that you understand what rights you are giving up and what you are gaining in return, it is important that you seek the counsel of an experienced attorney who can help you review and understand the document you’ve been given, as well as potentially negotiate with the employer to protect your interests.If you have any questions, please contact us at 610-275-0700 or via email at main@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Statute of Repose in the Context of Construction Cases

June 6, 2017By Kevin CornishImagine you are a homeowner and you hire someone to perform a construction project on your house. Or, you are a contractor who performed some type of construction.  Once a job is completed, what is the maximum amount of time that Pennsylvania allow for a lawsuit to be filed for deficient work, property damage, or personal injury resulting from allegedly substandard materials or workmanship?   This question is central to your legal rights.A statute of repose is a law designed to bar actions from being filed after a specified period of time has run.  A statute of repose is designed to protect defendants from having to defend against old or stale claims that the passage of time can make difficult to defend.  For example, paperwork can be lost, or potential witnesses can move away.  In the context of home repairs, a statute of repose is not triggered by an injury, but rather begins to run when the repair at issue is completed.  If enough time has elapsed that a statute of repose defense can be made, then a potential plaintiff can lose the case despite what might have been a successful cause of action had the case been filed earlier.  In contrast, if you are a defendant, a statute of repose can be a valuable defensive tool.The Pennsylvania statute of repose generally prohibits construction lawsuits filed more than 12 years after the work was completed. This means that a lawsuit related to construction must be commenced within 12 years after completion of the project or else it is forever barred. The statute of repose applies even if the deficient construction was not discovered until after 12 years has passed.  There is an exception if an injury occurs more than 10 but less than 12 years after completion of the work. In that case, the statute of repose allows a lawsuit to be filed up to 14 years after completion.If you are a homeowner who suffered damage as a result of construction, or a contractor being sued for work performed, it is vital to evaluate how much time has passed since the completion of work to determine if a claim is barred.    If you suspect you may have a cause of action based on a construction work performed, it is recommended that you timely consult an attorney so that a good potential cause of action is not lost.   If you are a contractor who is being sued based on work done long ago, it is recommended that you consult an attorney to determine if there is a viable defense based on the statute of repose.   The attorneys at High Swartz stand ready to evaluate your potential construction case claim or potential liability.If you have any questions, please contact Kevin Cornish at 610-275-0700 or via email at kcornish@highswartz.com.The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.