Labor and Employment Update - Fall 2011



An Administrative Law Judge for the NLRB recently dismissed an unfair labor practice charge because he found that the employer had discharged the employee for a Facebook posting that was not protected concerted activity. Interestingly, the Judge held that the employee had also made another posting that was protected concerted activity, but that the employer did not wrongfully terminate the employee. 

The Judge ruled that the employer had an overly broad social media policy and ordered posting of a notice informing employees of their right to engage in protected concerted activity. In the Knauz Motors case, the employee was a car salesman who posted on Facebook that he and his colleagues were disappointed with the food and beverages served at a dealership event promoting the latest model BMW. Arguably, the sales people believed that the food (hotdogs and bottled water) could affect sales and ultimately their individual commissions. Subsequently, the same salesman posted photos of an incident at a nearby dealership where a vehicle was accidently driven into a pond. The two dealerships were owned by the same company. The Judge held that while the complaints about the sales event were protected concerted activity, the postings about the accident were not. The Judge found that the salesman was terminated for the accident postings. 

This case demonstrates that employers cannot have a blanket policy restricting activity on social media sites.  However, employers are free to discipline employees if their comments/postings are merely derogatory or personal in nature as opposed to being about the terms and conditions of employment. If you have questions about your social media policy, you should consult your employment counsel.

Charles A. Ercole


There have been recent allegations that employers are refusing to hire job applicants who have been out of work for an extended period of time. Historically, employers have considered a long break in service between jobs as evidence that the applicant may not be the most motivated employee. However, because of the significant downturn in the economy and the extremely high unemployment rate, President Obama has proposed the American Jobs Act, which includes an anti-discrimination provision that prevents employers from discriminating against job applicants based on their “status as unemployed.” 

Specifically, the act provides as follows:

It shall be an unlawful employment practice for an employer to:

1.         Publish in print, on the Internet, or in any other medium, an advertisement or announcement for an employee for any job that includes:

(a)        any provision stating or indicating that an individual's status as unemployed disqualifies the individual for any employment opportunity; or

(b)        any provision stating or indicating that an employer will not consider or hire an individual for any employment opportunity based on that individual's status as unemployed.

2.         Fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of the individual's status as unemployed; or

3.         Direct or request that an employment agency take an individual's status as unemployed into account to disqualify an applicant for consideration, screening, or referral for employment as an employee.


Nothing in this Act is intended to preclude an employer or employment agency from considering an individual’s employment history, or from examining the reasons underlying an individual’s status as unemployed, in assessing an individual’s ability to perform a job or in otherwise making employment decisions about that individual. Such consideration or examination may include an assessment of whether an individual’s employment in a similar or related job for a period of time reasonably proximate to the consideration of such individual for employment is job-related or consistent with business necessity. 

As with other discrimination statutes, employers need to carefully examine the reasons for denying an applicant an offer of employment. Certainly an applicant’s work history, including the number of jobs or othergaps in employment, remain legitimate factors for consideration in the hiring process.

Charles A. Ercole


The Second Circuit Court of Appeals recently held that the Americans With Disability Act (“ADA”) as well as the Rehabilitation Act of 1973 (applicable to public employers) requires employers to consider whether they can reasonably accommodate a disabled employee’s request that the length of their commute be reduced. In Nixon-Tinkelman v. NY City Department of Health and Mental Hygiene, the employee had extensive disabilities including cancer, heart problems, asthma and a hearing impairment. The employer transferred her from Queens to Manhattan and the employee requested that the Department accommodate her by reducing her commute and transferring her back to an office close to her home in Queens.

The District Court initially dismissed the employee’s complaint holding that the activity (commuting) is outside the scope of the job and not within the employer’s obligations to accommodate under the ADA and Rehabilitation Act. The Second Circuit, however, overturned the District Court’s decision and held that there may be circumstances when an employer will be required to provide commuting assistance to a disabled employee when such assistance is not “inherently unreasonable.” The court held that the following factors should be considered:

            1.         The employer’s total number of employees;

            2.         The number and location of the employer’s offices;

            3.         Whether other positions exist for which the plaintiff was qualified;

            4.         Whether the employee could have been transferred to a more convenient office without unduly burdening the employer’s operation; and

            5          The reasonableness of allowing the employee to work from home without onsite supervision.

This case demonstrates the burden that employers bear and the need to thoroughly examine any requests for accommodation by a disabled employee. While it is true that employers are not required to offer the specific accommodation an employee requests, employers must interact with employees to determine whether the request is reasonable or whether there are alternative accommodations that can allow disabled employees to continue working and perform the essential functions of their job.

Charles A. Ercole


In Braunv. Wal-Mart Stores, Inc., the Pennsylvania Superior Court recently affirmed a multi-million dollar jury award finding that Wal-Mart violated the Wage Payment and Collection Law (“WPCL”) when it failed to compensate employees pursuant to policies contained and/or referenced in its handbook (the polices were also reinforced throughout the Company and explained on posters displayed in employee break areas). 

The policies guaranteed Wal-Mart’s hourly employees paid rest breaks, as well as payment for any time worked, including time that was off-the-clock. Despite the fact that each employee, upon receipt of the handbook, was required to sign a form stating that the handbook was for information purposes only and did not constitute terms and conditions of employment or a contract, the lawsuit claimed that employees continued to work in reliance on the promise that the corporate policies concerning pay during rest breaks and for off- the-clock work would be enforced. The Court held that this reliance was reasonable and, as such, the statements made in the handbook constituted a unilateral offer of employment that the employees accepted when they began to and continued to work for Wal-Mart.         

In so finding, the Court recognized that in Pennsylvania generally, explicit disclaimers of contract formation in an employee handbook preclude a breach of contract claim. The Superior Court also emphasized, however, that provisions in a handbook can constitute a unilateral offer of employment that an employee can accept by continuing the performance of his or her duties. Provisions may constitute these unilateral offers when a reasonable person in the employee's position would interpret the provisions as evidencing the employer's intent to be bound legally by the representations in the handbook.   Under the facts in this case, the Court found that, while the disclaimer language in Wal-Mart’s handbook may have been sufficient to maintain the Company’s right to alter the terms and conditions of an employee’s position for work performed after the alteration, it did not allow Wal-Mart to apply the modifications retroactively to work already performed before the modifications are made.  

By breaching the unilateral contract the Company created with its employees, the Court determined that Wal-Mart deprived the employees of fringe benefits as defined under the WPCL, thereby entitling the plaintiffs to liquidated damages (25% of the wages owed) and attorneys’ fees over and above the amount of unpaid wages to which the plaintiffs were entitled.

This decision is important to any company that has relied on the disclaimer language in its handbooks to change the terms and conditions of employment. This decision makes clear that statements in a handbook, despite the disclaimer language, can rise to the level of an offer of terms of employment that is deemed to have been accepted by the employee working for the employer. In light of this decision, employers should review their handbooks to ensure they are complying with any compensation provisions set forth in their handbooks, or the employer may be faced with a WPCL claim and significant damages.

Lee D. Moylan