The NLRB ruled that it was unlawful for Plaza Auto Center to fire car salesman Nick Aguirre after he swore at the company’s owner. Mr. Aguirre had only worked at the car dealership for two months, but in his short tenure, he raised a lot of complaints about his working conditions. Mr. Aguirre constantly asked his supervisors about how his commissions were calculated and when he could take bathroom and meal breaks. He griped about being employed on a 100-percent commission sales basis and said he should at least receive minimum wage.Continue reading this entry
Michael C. Lueder
Potty Mouth Employee Loses Protection
Posted in Labor RelationsGood News on the Social Media Front
Posted in Fair Labor Standards Act (FLSA)It seems that the NLRB files a complaint every month against an employer claiming an illegal reaction to a Facebook posting, taking the position that social media complaints are protected activity if they touch on topics of employee collective concern. Now, an employer has finally won a social-media-based retaliation case.
Can Accusing a Former Employee of Stealing Trade Secrets Be Unlawful Retaliation?
Posted in Discrimination, Retaliation and Harassment; Trade Secrets Protection/NoncompetesEmployers can be subject to lawsuits for actions they take after an employee leaves their employment. Luzenac American fired Sanford Lee Hertz in January 1998. Shortly after his termination, Mr. Hertz sued Luzenac for religious discrimination and retaliation in connection with the firing. The case went to trial and a jury returned a verdict in favor of Mr. Hertz.
While the case was on appeal, Mr. Hertz entered into a consulting agreement with IMI Fabi to help it manufacture and market a product to compete with a Luzenac product. Once Luzenac got the news, it sent a letter to Mr. Hertz demanding he stop misappropriating its trade secrets. Luzenac’s counsel sent a cease-and-desist letter to Mr. Hertz’s counsel, copying IMI Fabi, alleging that Mr. Hertz was illegally using Luzenac’s proprietary information to compete against it.
Lust Not Required for Sexual Harassment
Posted in Discrimination, Retaliation and HarassmentThe Department of the Army lost its argument that its supervisor could not have sexually harassed his subordinate because he was not sexually attracted to her. Civilian employee Ruth Rosario alleged that her Army supervisor teased her about her panties every day for more than a year. He mocked her. He made faces behind her back — even while she spoke with customers. He threw her food in the trash. He complained about her family pictures and the way she walked and talked. He called other males together to look, point, and laugh at Rosario’s underwear. He called her fat and said she dressed like a “woman of the streets.”
Ms. Rosario complained to the Army, but the harassment continued. Eventually she became depressed, started losing her hair, had panic attacks, and was hospitalized. She asserted that she lost her marriage due to the situation at work. Ms. Rosario eventually filed a lawsuit alleging sexual harassment. The trial court found that the supervisor was “rude” and “lacked courtesy” and “professionalism.” However, it threw out her case because it ruled the conduct was not severe or abusive enough to constitute a hostile work environment based on sex.
Ms. Rosario appealed. This month the U.S. Court of Appeals for the First Circuit ruled that she could proceed with her case, see Rosario v. The Department of the Army, et al. The Appeals Court rejected the Army’s defense that Ms. Rosario had no case because no one made any sexual advances toward her or said he was sexually interested in her. Quoting the U.S. Supreme Court, the Court ruled: “Harassing conduct need not be motivated by sexual desire to support” a sexual harassment claim, see Oncale v. Sundowner Offshore Services, Inc., et al. Ms. Rosario had proof that she was subjected to constant harassment over an extended period. The supervisor’s comments about her panties and his references to her as a “women of the streets” could support the necessary finding that his behavior was sex-based. The case now goes back to the trial court for a jury to decide.