On December 24, 2015, the National Labor Relations Board (NLRB), in Whole Foods Market, Inc. , Case No. 01-CA-096965, 363 NLRB No. 87, held that employees could reasonably construe the following policies as prohibiting Section 7 concerted activity activity and that the policies therefore violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”).
Here are the two policies:
“It is a violation of [employer] policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received from your Store/Facility Team Leader, Regional President, Global Vice President, or a member of the Executive Team, or unless all parties to the conversation give their consent. Violation of this policy will result in corrective action, up to and including discharge.”
“It is a violation of [employer] policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.
The Board stated “case law is replete with examples where photography or recording, often covert, was an essential element in vindicating the underlying Section 7 right” and found, therefore, that photography and audio and video recording at the workplace are protected under certain circumstances.”
But wait, under our state law, it is illegal (Penal Code Section 632) to record a confidential communication without all parties’ consent. Also California’s Constitution expressly guarantees a right of privacy for all citizens. Doesnt that trump the NLRB ruling?
Probably not, because of something called the Garmon doctrine, which says that the NLRA also preempts states from regulating conduct that is arguably either protected or prohibited by the NLRA.’ The “arguably protected or prohibited” test broadly excludes state laws and claims without regard to the substance of the state regulation. Thus, the NLRA preempts state regulation even where the substantive terms of a state law are wholly consistent with that of the NLRA.
That’s pretty broad. It’s one more example of how federal agencies are gradually nationalizing all labor regulations throughout the country.
San Diego and Los Angeles recently enacted Paid Sick Leave ordinances that are effective July 1, 2016 (Los Angeles employers with 25 or fewer employees do not begin providing Paid Sick Leave benefits until July 1, 2017). These local ordinances contain provisions that are different than the statewide Paid Sick Leave law.
Employees and employers alike need to review company policies to ensure that they comply with both the state and the local law. Review whether you have employees working in a city with a local Paid Sick Leave ordinance. Whichever law, or portion of the law, provides the most generous rights or protections to the employee will apply.
The Family and Medical Leave Act (FMLA) allows certain employees to take up to 12 weeks of unpaid leave each year. This leave is job-protected, which means that eligible employees cannot be fired for taking this leave. If they are, it could be grounds for an unlawful termination claim. However, the FMLA does have strict eligibility requirements. To find out if you are a covered employee, consider seeking employment law advice from a labor attorney in San Jose, CA. Your labor rights lawyer will ask you for certain information, such as how long you worked for your employer prior to taking leave, how many employees are located at the business, and whether you provided timely notice to your employer before taking your leave.
If your attorney determines that you may have been terminated unlawfully, you might decide to file a claim. Your lawyer may file a grievance with your union if you are a member. Otherwise, you may file a claim in court. Since deadlines do apply to filing claims, be sure to talk to an attorney as soon as possible after your termination.
Pregnancy, childbirth, and medical conditions related to pregnancy and childbirth are protected classes. This means that discriminatory behaviors in the workplace that arise because of these health statuses are illegal. If you feel that you’re being discriminated against because of your pregnancy, you can consult a labor rights lawyer in San Jose, CA, to discuss the situation. Your attorney can provide invaluable employment law advice and discuss the merits of filing a claim. Keep a written record of all incidents you observe; your labor rights lawyer will need this information to effectively prepare your case.
Receiving negative performance reviews or other criticism of your work performance is not necessarily a sign of discrimination. However, sudden changes in reviews of your work might be. If you consistently received favorable performance reviews and other feedback prior to disclosing your pregnancy and now you’re suddenly receiving negative feedback, you might be on the receiving end of illegal workplace discrimination . Be sure to keep all written performance reviews and similar communication and show copies of these documents to your labor rights lawyer.
Unfortunately, it’s not uncommon to be the recipient of hostile behavior from a supervisor. Sometimes, supervisors are simply mean-spirited individuals. But if you’re being singled out because of your pregnancy, this could constitute workplace discrimination. Consider whether others in similar roles as yours are also suffering from the hostile behavior of a supervisor.
Pregnancy-related discrimination may not always involve blatant acts of discrimination. Sometimes, exclusion can also constitute discrimination. For example, you might suddenly cease to receive in-office communication, invitations to meetings, or invitations to networking events.
Derailed Career Track
A derailed career track might be another subtle sign of pregnancy discrimination. For example, if you were engaging in talks about a promotion, raise, or career training opportunity prior to disclosing your pregnancy and now these talks have suddenly ceased, you might consider discussing this problem with your supervisor. Request a reason why your career track has suddenly derailed. If you are given an unsatisfactory reason or no reason at all, it may be time to talk to an attorney.
Whistleblowers are individuals who step forward and speak up when they witness acts of negligence or wrongdoing. Whistleblowers often face illegal workplace retaliation, including blacklisting, harassment, and unlawful termination. They must endure lengthy court proceedings and they may face being ostracized by their co-workers. So why exactly do whistleblowers step forward? Being a whistleblower is not an easy responsibility, but if you decide to speak up, you can have the effective representation of a labor rights lawyer in San Jose, CA.
To Do the Right Thing
When whistleblowers step forward, it’s often to report egregious problems in the workplace. A vendor may be drastically overcharging a government agency. A large hospital corporation may be committing Medicare fraud. Or a company may be routinely engaging in blatantly discriminatory hiring practices. Whistleblowers recognize that acts such as these are unethical, but they may be powerless to stop them. By stepping forward and talking to an employment law attorney, whistleblowers are behaving in an ethical and responsible manner to put an end to wrongdoing.
To Protect Public Safety
Sometimes, acts of negligence or wrongdoing committed by a company or agency may place public safety in jeopardy. Some whistleblowers turn to a labor rights lawyer for guidance because they feel compelled to act in the best interests of the safety of the general public. For example, a whistleblower might report that a company has been dumping toxic chemicals into a nearby river or that a fire department chief has been diverting funds that were supposed to be used for the maintenance of firefighting equipment.
To Protect Public Health
The actions of whistleblowers can protect public health. This is most readily seen in healthcare settings. A nurse may witness an egregious act of negligence by a surgeon, for example. A medical provider might report that drug diversion is a rampant problem in his or her hospital and perhaps the supervisors have been looking the other way. These are issues of public health because the negligent actions of medical providers can directly affect the care that patients receive.
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