It never ceases to amaze how something an employee would never say at the office watercooler can pop up on Facebook or Twitter without the slightest hesitation. A pair of social media posts from employees on disparate ends of the political spectrum illustrate the point.
A Maryland fire battalion chief authored a Facebook post mocking gun control advocates in which he wrote, “Think of the satisfaction of beating a liberal to death with another liberal… it’s almost poetic.” He also “liked” a racially-charged comment that a co-worker made in response.
The department asked the battalion chief, Kevin Buker, to take down the offending posts for violating its social media guidelines. And while Buker did so, he wrote a new post on his Facebook wall a few days later saying free speech only applied to liberals and “the liberal socialist agenda,” and that any post is likely to result in disciplinary action, up to and including termination.
The department eventually fired Buker, who filed suit claiming that this violated his First Amendment rights by unfairly penalizing him for speaking out on matters of public concern.
But the Richmond-based 4th Circuit Court of Appeals did not exactly play “Hail to the Chief” as it rejected Buker’s claim. The appellate court found that the department’s interest in workplace efficiency and preventing disruption far outweighed the public interest commentary in Buker’s speech.
Meanwhile, 200 Miles North…
New York Post sports reporter Bart Hubbuch posted a January 20 tweet comparing the election of Donald Trump to 9/11 and Pearl Harbor. You can probably guess the rest. Hubbuch quickly became a former New York Post sports reporter, although he had later deleted the tweet.
Since New York is one of the states that protects employees from being discriminated against based on their off-duty workplace expressions, Hubbuch sued his former employer for wrongful termination. He claimed that he was using Twitter “on his own time, from his own computer, and from his own home.”
But the Post filed a motion to dismiss the case, challenging Hubbuch’s contention that he wasn’t working when he posted the offending tweet. We will never know how matters would have turned out in court because Hubbuch decided last week to withdraw the lawsuit.
It’s safe to say, though, that posting such a tweet while working for any newspaper, let alone a conservative one, is not optimal for one’s longevity.
And Now for Something Completely Different
It’s been nearly two years now since the Supreme Court’s landmark ruling legalizing same-sex marriage in all 50 states in Obergefell v. Hodges. But that groundbreaking decision did not change the landscape on the federal level for gay and lesbian employees.
As veteran Proskauer Rose employment attorney Anthony Oncidi observed during a Supreme Court webinar we co-presented shortly afterwards, “It presents the odd situation where someone could get married on a Sunday and then be fired on a Monday.”
Since that time, several states have passed protections for LGBT employees, but federal law remains the same. Title VII of the Civil Rights Act is silent as to sexual orientation.
Earlier this month, a divided 11th Circuit Court of Appeals ruled in Evans v. Georgia Regional Hospital that a gay woman who presents herself wearing a male uniform and low male haircut cannot sue her former employer for sexual orientation discrimination under Title VII. In rejecting the claim, the appellate court noted that “discharge for homosexuality is not prohibited” under the federal civil rights law.
But in a vigorous dissent, Circuit Judge Robin Rosenbaum wrote of the plaintiff in the case, “It is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women.” An appeal to the full 11th Circuit to rehear the dispute is a virtual certainty, so don’t expect this to be the last word on the issue.
In fact, the Chicago-based 7th Circuit is currently reviewing a similar case in Hively v. Ivy Tech Community College in which an appellate panel also ruled 2-1 that Title VII does not safeguard employees who claim sexual orientation discrimination. Interestingly, the panel expressed discomfort with its own ruling but noted that Congress has repeatedly rejected legislation to extend Title VII to cover such claims.
The entire 7th Circuit reheard the case earlier this term, and a decision could be coming soon. Whatever the result, don’t be surprised if the Supreme Court decides to take a long look at whether to intervene.
Bye Bye to Blacklisting Order
If you’re a James Spader fan, NBC’s hit television show is likely what first comes to mind when you hear about, “The Blacklist.” But to the Trump administration and many opponents of over-regulation, the “blacklist” refers to an Obama administration executive order that they claimed was unfairly targeting employers.
The Fair Pay and Safe Workplaces rule was designed to increase efficiency and cost savings by improving federal contractor compliance with the nation’s labor laws. Supporters claimed that the rule effectively leveled the playing field by requiring noncompliant contractors to report recent labor law violations, including safety violations, when bidding on a new or renewed government contract worth $500,000 or more.
A federal judge in Texas had placed the rule on hold in October 2016 by enjoining agencies from implementing the labor law violations reporting requirement. But on March 27, President Trump took things a step further by signing into law a resolution blocking the blacklisting rule.
White House press secretary Sean Spicer said, “The rule simply made it too easy for trial lawyers to go after American companies and American workers who contract with the federal government.”
Walt Disney Company to Pay Hefty Settlement
The recent news out of the Magic Kingdom is not about a new roller coaster or crowd lines, but rather a $3.8 million settlement of a Fair Labor Standards Act (FLSA) lawsuit that seemed eminently avoidable. The settlement came after the Department of Labor (DOL) found that the Walt Disney Company had violated the FLSA’s minimum wage, overtime and recordkeeping requirements.
The company had deducted a uniform or “costume” expense that caused many employees’ hourly rates to fall below the federal minimum wage. It also allegedly failed to maintain required time and payroll records, according the DOL.
As a result of the agreement, back wages will be paid to more than 16,000 employees. In a statement, the DOL noted that the resolution of this case should alert other employers who may be paying their employees in a similar manner, so they can correct their practices immediately.
No word yet as to whether the Seven Dwarfs were among those Disney charged for their costumes.