Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

January 18, “Affordable Care Act Overview" sponsored by the Institute of Management Accountants

 

January 31, “How to Build a Hiring System for Consistent Performance” sponsored by Capstone Pacific Investment Strategies

 

February 11, “Leave Me Alone! An Overview of Leave Laws in California” workshop sponsored by Industry Manufacturers Council

 

Full Day Workshop on January 16: Start the new year on the right “employment law” foot! Click on HR4U 101 Workshop for more details. Now approved for 8 hours of HRCI credit.

 

Worker Wins $1 Million for Boss’ Gun Threats

An employee at the Los Alamos National Laboratory won a $1 million jury verdict because of two comments her supervisor made about using a gun at work.

 

Marlayne Mahar, who worked at the plutonium processing facility, sued the lab after her new supervisor (Randy Fraser) told her that a boss could shoot a worker who says the wrong thing.

“It’s a good thing guns are not allowed at work,” Fraser allegedly said to Mahar. “You know that story about the employee stands up and says the wrong thing and his boss takes out a gun and shoots him!”

 

According to Mahar’s lawsuit, brought for violating the lab’s workplace violence policy, breach of contract and acting in bad faith, the same supervisor made another gun comment to a co-worker.

 

Only a few days after Mahar’s incident, another employee reported that Fraser “went ballistic” at her over a work plan and said he was going to “bring in a gun and take care of it himself.” That employee got so spooked that she called the police saying she felt threatened, and the lab’s own SWAT team responded.

 

At trial, Mahar’s attorney argued that the threatening comments began after Mahar, who was a deputy group leader, complained about unaccounted for nuclear inventory at the plutonium processing center. The attorney contended her complaints “brought a lot of attention to the Lab as well as the U.S. Department of Energy,” which investigated.

 

After the investigation, Mahar was demoted and Fraser replaced the group leader. According to Mahar, the abuse started immediately. Fraser said he was only joking when he made the comment to Mahar, and he denied that the second incident happened at all. An investigation by the lab concluded that the allegations couldn’t be corroborated and the case was closed.

 

Mahar sought treatment from a psychologist and took two months of medical leave. She was given the option of working for Fraser again or taking another job. She chose to be relocated to another area even though the work was a demotion to a clerical position far below her previous job. Fraser still works for the lab.

 

NLRB Orders Reinstatement and Back Pay for Employee who was Unlawfully Discharged for Discussing Salary Information

Despite the uncertainty surrounding the legitimacy of the current National Labor Relations Board, the Board has continued to issue decisions that have serious consequences for employers. The most recent example comes from the Board’s decision in Jones & Carter, Inc., where it upheld an Administrative Law Judge’s ruling that a non-union employer violated the National Labor Relations Act when it terminated an employee for discussing salaries with her co-workers.

 

In Jones & Carter, the employer had a confidentiality policy that prohibited employees from discussing “financial matters concerning either the firm’s clients or the firm with “outsiders or friends.” The employer maintained that this portion of its confidentiality policy prohibited employees from discussing salaries with other employees “unless the employee is discussing his or her own salary with the employee’s supervisor.” The employer terminated an employee after she “harassed” and “badgered” other employees about their salary information. 

 

The ALJ held that the employee was terminated because of her protected activity in discussing salary information with another employee. In support of her finding, the ALJ noted that the Board has consistently held that an employer violates the NLRA where it disciplines an employee for engaging in protected activity “without regard to the employer’s motive, and without regard to a showing of animus. The ALJ rejected the employer’s argument that the employee lost protection of the Act by harassing and badgering other employees, finding that the employee’s conversations with other employees, while possibly “wrong and deceptive,” were nonetheless consensual, and that there was no evidence that the employee engaged in egregious, harassing conduct. Finally, the ALJ held that the employer’s confidentiality policy was “overly broad” and violated the Act because it prohibited employees from engaging in protected conduct.

 

As a remedy, the ALJ ordered the employer to reinstate the employee with back pay. The employee declined reinstatement, and the employer ultimately agreed to pay her back pay, 401(k) contributions, medical expenses, and interest totaling $107,000.

 

This case presents yet another reason for all employers to review their handbooks and revise any policy (especially Social Media) that could reasonably be interpreted as interfering with employees’ rights under federal labor law. The case also highlights that employers face significant penalties for violations of the National Labor Relations Act. 

 

Factoids

• In California, non-competes are generally unenforceable, except when the agreement is made pursuant to a sale of a business or a shareholder’s stock or dissolution of a partnership. 
• Workers who expect to retire before 65: 23%
• Workers who did retire before 65: 69% (usually because of health or layoff)
• Median household retirement savings for displaced workers:

• 40s                   $1900
• 50s                   $16,400
• 60s                   $93,000

 

Quotes

“The best cure for insomnia is to get a lot of sleep.”

~W. C. Fields~