​For an overview of a union’s right to strike under federal law, see our recent blog discussing the subject here.  

The International Alliance of Theatrical Stage Employees (IATSE) represents over 150,000 workers in the entertainment industry in the United States and Canada, including costume and set designers, makeup artists, script coordinators, camera operators, and other on-set workers.
 
The IATSE has been negotiating with the Alliance of Motion Picture and Television Producers (AMPTP), which represents the studios and production companies, for months to reach a new collective bargaining agreement. Some of the most critical terms for a new agreement to the IATSE include limits to shooting hours, increased wages and compensation, rest and meal periods, and working conditions.
 
On October 4, 2021, IATSE members overwhelmingly voted in favor of a strike authorization following unproductive negotiations. IATSE President Matthew Loeb then set a Monday, October 18 deadline to reach a new agreement with the AMPTP. If a deal is not reached by 12:01 a.m. Pacific Time Monday, union members will begin a nationwide strike that would set in motion the nation’s largest work stoppage since the 2007-2008 strike by the Writers Guild of America and would be the first strike for IATSE in its 145-year history.

​About 10,000 members of the United Auto Workers (UAW) union went on strike against farm and construction equipment maker John Deere this morning, October 14, 2021. The UAW had reached a tentative six-year agreement with the company two weeks ago, but 90% of the union’s membership voted against it and a new agreement has not been made.
 
This is the nation’s largest private-sector strike since the UAW’s six-week strike against General Motors two years ago. Workers are most certainly emboldened by the increase in demand during the pandemic coupled with the shortage of workers. The contracts under negotiation cover 14 Deere plants across the United States.

​More than 24,000 Kaiser Permanente nurses and healthcare workers also authorized a strike. The United Nurses Association is contesting Kaiser Permanente’s efforts to cut wages amidst turning a $2.7 billion profit in the pandemic. The strike would involve nurses, pharmacists, rehab therapists, midwives, and optometrists at Kaiser hospitals throughout California and could come as soon as 10 days after giving notice to the employer as required by law.

​About 1,400 Kellogg workers represented by the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM) at four U.S. plants are also currently on strike. These workers produce cereals for brands including Rice Krispies, Fruit Loops, Frosted Flakes, and Raisin Bran.
 
Kellogg workers are striking against a proposed two-tier system for current and new employees along with no offer for pensions to new employees, a removal of cost-of-living provisions, and changes to holiday pay and vacations. These employees often worked seven days a week, 16 hours per day during the pandemic. 

​This is only a snapshot of strike activity in the U.S. this month. Several other large groups of workers have voted to authorize strikes across the country and many more strikes are likely to emerge. This comes after the National Labor Relations Board noted a record low number of strikes in 2020, reaching only 27,000 workers. Whether this momentum will continue into the new year remains to be seen, but October has certainly resulted in a swift rise for the American labor movement. 

With a Facebook whistleblower dominating recent national news headlines, the question of what exactly a whistleblower is and what protections one has when coming forward with information may be in readers’ minds. 

A whistleblower is someone, usually an employee, who reports an organization or agency’s waste, fraud, abuse, corruption, dangers to public health and safety, or other illegal or illicit activity to someone who has the authority to to rectify the wrongdoing. 

First, a distinction must be made between federal whistleblowers, public whistleblowers, and private whistleblowers, as different federal laws apply to each category.

In 1989, Congress passed the Whistleblower Protection Act, guaranteeing that federal whistleblowers would not face retaliation if they reported misconduct within their departments. The law protects any employee who reports illegal activity as well as “mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety” taking place in their offices. The more recent Whistleblower Protection Enhancement Act of 2021 similarly protects federal employees from retaliation.

Whistleblower protections vary widely between states, and Texas whistleblower laws are not as protective as others.

The Texas Whistleblower Act prohibits a state or local governmental entity from taking adverse personnel action against a “public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement agency.” The elements of a Texas Whistleblower Act claim are: (1) the plaintiff was a public employee; (2) the defendant was a state agency or local government; (3) the plaintiff reported in good faith a violation of law to an appropriate law enforcement agency; and (4) the plaintiff’s report was the but-for cause of the defendant’s suspending, firing, or otherwise discriminating against the plaintiff at the time the defendant took that action.

The term “good faith” means that the employee believed that the conduct reported was a violation of law and the employee’s belief was reasonable in light of the employee’s training and experience. An employee’s mistaken belief that she is reporting a violation of law to the appropriate law enforcement authority is still in good faith, and she may still be protected by the Act, if the employee believes the governmental entity is authorized to either regulate under or enforce the law alleged to have been violated in the report or to investigate or prosecute a violation of criminal law and the employee’s belief is reasonable in light of the employee’s training and experience.
​
An appropriate law enforcement authority to which a public employee can report a violation of law, the authority must have outward-looking powers; it must have the authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties. The authority must be actually responsible for regulating under or enforcing the law allegedly violated and must have law enforcement authority over third parties outside of the entity. 

It is not always possible to consult an attorney prior to coming forward with information that entitles the employee to whistleblower protection; however, to the extent it is possible, consulting with an experienced attorney is strongly recommended. Employees wishing to file a lawsuit for discrimination or retaliation under the Texas Whistleblower Act and other state and federal laws should seek assistance from an experienced employment attorney.

Texas, and 48 other states, adheres to the presumption of at-will employment, and has done so for more than 100 years. The general at-will rule is that, absent a specific agreement to the contrary, employment may be modified or terminated by the employer, or the employee, at will. As a general rule, employment for an indefinite term is presumed to be employment at will.

This means an employer may discharge an employee for good cause, bad cause, or no cause at all, as long as it does not violate the law. For example, state and federal law prohibit discrimination and retaliation, so employers cannot terminate an employee based on his or her gender, race, age, national origin, color, or religion, or for opposing an unlawful employment practice. Texas therefore does not recognize a claim for wrongful termination in the absence of an employment contract or statute.
​
However, this presumption does not preclude employers and employees from forming subsequent contracts limiting an employer’s right to discharge an employee, so long as neither party relies on continued employment as the consideration for the contract. Thus, despite the at-will presumption, employers may nonetheless restrict their ability to discharge employees by expressly providing for employment for a specific period of time, for example, or by limiting any terminations to those for good or just cause.

The presumption that employment at will is difficult to overcome and an employer’s modification of the presumption must be express and cannot be implied.
​
Thus, an employee manual or handbook vaguely stating that an employee may be dismissed for cause does not modify the at-will employment rule by requiring that dismissal be only for cause. Nor is the manual’s requirement that employee records state one of several bases for termination a specific agreement that alters the relationship. Similarly, the Texas Supreme Court has ruled that comments by the employer that assure the employee she will always have a job if she works hard do not destroy the presumption of at-will employment.

A contract that alters the at-will relationship must unequivocally indicate the employer’s definite intent to be bound not to terminate the employee except under clearly specified circumstances.

It is the employee’s burden to prove that the employer expressly, clearly, and specifically agreed to modify the employee’s at-will employment status.
​
Under Texas law, statutory exceptions to employment-at-will include:

1. Discharge based on filing a workers’ compensation claim;
2. Discharge based on membership or non-membership in a union;
3. Discharge based on active duty in the military;
4. Discharge based on jury service; and
5. Discharge based on discrimination. 

There is a public policy exception to at-will employment in Texas, but it is exceptionally narrow. The Sabine Pilot exception affords employees protection from retaliatory discharge for refusing to engage in illegal conduct.

To prevail under the very narrow Sabine Pilot exception, the discharged employee must prove his or her discharge was for no reason other than his or her refusal to perform an illegal act. Attempts to expand the public policy exception have failed.

There is no public policy exception for employees who are:

1. Discharged for reporting illegal activities;
2. Discharged for refusing to perform an act that she mistakenly thinks is illegal; or
3. Discharged for inquiring into the legality of an act later determined to be legal.

The exception does not extend to private whistleblowers, although the Texas Whistleblower Act offers some protection from retaliation, which will be discussed in depth in a future blog.

Despite this at-will presumption, Texas employees are still granted significant protections in their employment under state and federal law. Workers who are unsure whether their employment contract has been violated or whether they may have a claim for an unlawful discharge should seek the guidance of a reputable employment attorney.

We recently published an update pertaining to recent Texas court decisions, available here. This week’s blog reviews recent Texas legislative actions affecting employment law.

In addition to the new sexual harassment protections that we wrote about here, the Texas Legislature has passed other employment legislation in its most recent regular session and two-specially called legislative sessions. 

Texas is one of 19 states that have passed statutory liability protections for businesses against claims arising from the COVID-19 pandemic Authored by Sen. Kelly Hancock, the Pandemic Liability Protection Act (PLPA) was passed by both chambers by supermajorities and went into effect on June 14, 2021. The PLPA grants retroactive liability protection for small and large businesses for claims commenced on or after March 13, 2020. It does not however, provide businesses an absolute immunity shield. Although high thresholds, claims can still be brought for a pandemic-related injury or death if the business:

1. Knowingly failed to warn of, or to fix, a condition it knew was likely to result in exposure, and the failure to warn or fix was the cause in fact of the exposure; or
2. Knowingly failed or refused to comply with government standards, guidance, or protocols that are intended to lower the likelihood of exposure to COVID-19, and the failure or refusal to comply was the cause in fact of the exposure.

Merely asserting that a defendant knew of and failed to warn of a condition that was likely to result in the exposure to COVID-19 and knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols is insufficient to establish a claim. Instead, the plaintiff must provide reliable scientific evidence that shows the defendant’s failure to warn of the condition or failure to comply was the cause in fact of the individual contracting the disease.
​
The PLPA’s liability shield will continue to protect businesses until Governor Abbott terminates the current COVID-19 pandemic disaster declaration. Notably, the law does not create a private cause of action. 

While recreational marijuana is still prohibited in Texas, earlier this year, Governor Abbott signed into law HB 1535, which went into effect September 1, 2021. The new law doubles the permissible amount of THC in low-THC cannabis, from 0.5% to 1%. It also adds cancer, chronic pain, and post-traumatic stress disorder to the permissible list of medical conditions for which low-THC cannabis may be prescribed.
​
This new law significantly expands the number of people potentially eligible for a prescription, as the previous law only permitted prescriptions for epilepsy, a seizure disorder, multiple sclerosis, spasticity, sclerosis, autism, and terminal cancer. The new law also permits a prescription of low-THC cannabis in an approved research program.

Under the terms of the bill, one or more compassionate-use institutional review boards would be established to evaluate and approve proposed research programs that would study the medical use of low-THC cannabis in treating specific medical conditions. The boards would also oversee patient treatment that was undertaken as part of an approved research program, including the certification of treating physicians.

The law instructs the relevant state agencies to issue rules and guidance by December 1, 2021. Although the new law does not contain any employee protections for use of cannabis, employees may request accommodations for permission to use low-THC cannabis for medical purposes.

​SB 484 went into effect on September 1, 2021 and provides enhanced employment protections for active service members. Texas employees who are called to active duty or training with state military forces have long been protected from termination and had certain reinstatement rights after returning from duty or training, but an aggrieved individual previously could only file a complaint with the Texas Workforce Commission. The new law gives employees the right to hire a lawyer and file a civil lawsuit in state court, and further permits recovery of damages, costs, and attorneys’ fees.

​Governor Abbott also signed into law the Firearm Carry Act of 2021, HB 1927 (FCA), which went into effect on September 1, 2021. The FCA generally permits most Texans age 21 and over to carry holstered handguns without training or a license-to-carry permit if they are not otherwise prohibited from doing so by state or federal law. The new law does not prevent or otherwise limit the right of a public or private employer to prohibit persons from carrying a handgun on the premises of the business, but most employers cannot prevent employees from keeping a firearm in their locked vehicles in a parking lot. 

Several bills were introduced during the regular legislative session to require private employers to provide employees with paid sick leave and they all failed. Cities have attempted to pass laws requiring sick leave, but they have similarly been thwarted. The City of Dallas passed a paid sick leave ordinance on August 1, 2019 for employers with six or more employees, but the Eastern District of Texas struck it down as preempted by the Texas Minimum Wage Act and in violation of the Texas Constitution.
​
There is therefore still no state or local law that requires Texas employers to provide paid sick leave. 

​For a broad overview of the National Labor Relations Act, see our previous blog here. 

​At its core, a strike is a cessation of work, a refusal to continue work, a slow-down, or other concerted activity initiated by employees for the purpose of slowing down the employer’s output.
Data from the Bureau of Labor Statistics showed an upsurge in major strike activity in 2018 and 2019, marking a 35-year high for the number of workers involved in a major work stoppage over a two-year period. Many of those strikes made national news. 

In 2018, there was a wave of teachers’ strikes throughout the U.S. demanding raises, where in one-third of the country, the average teacher earns less than $50,000 per year. In the fall of 2019, there was a strike by over 40,000 GM autoworkers over plant shutdowns and wages and benefits and another strike by over 20,000 AT&T workers who alleged the company was not bargaining in good faith for a new contract.
​
All employees—whether they are unionized or not—have the right to participate in a protected strike, picket, or protest regarding work-related issues. However, the law places limitations and qualifications on the exercise of that right, some of which we will discuss below.

Section 7 of the National Labor Relations Act states in part, “Employees shall have the right. . .to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.” Among those concerted activities is the right to strike.

Section 13 of the Act also addresses the right to strike, stating: “Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.”

There is no federal law giving public-sector workers the right to strike, but a dozen states have enacted laws giving public-sector workers certain strike rights, including Alaska, California, Colorado, Hawaii, Illinois, Louisiana, Minnesota, Montana, Ohio, Oregon, Pennsylvania, and Vermont. The vast majority bar strikes that would endanger public health, safety, or welfare, and for that reason, police and firefighters are prohibited from striking in almost every state.

The 38 states that do not recognize a permissive strike right either do not recognize their right to strike or have an outright prohibition against public sector strikes. Section 617.003 of the Texas Government Code expressly prohibits public employees from engaging in strikes or organized work stoppage against the state or a political subdivision of the state.
​
Not all employee strikes are lawful. Whether a strike is lawful depends upon its purpose, its timing, and the conduct of the strikers. 

A strike is legal and protected by the Act if the employees are striking for economic reasons or to protest an unfair labor practice by the employer.

Economic strikers seek to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions. They cannot be discharged, but they may be replaced. If the employer hires bona fide permanent replacements to fill the jobs of the economic strikers when the strikers apply unconditionally to return to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings occur once they make an unconditional request for reinstatement.

Unfair labor practice strikers seek to protest an unfair labor practice committed by their employer and they may not be discharged or permanently replaced. When the strike ends, absent serious misconduct on their part, they are entitled to have their jobs back even if employees hired to do their work have to be discharged.
​
If the Board finds that economic strikers or unfair labor practice strikers who have made unconditional requests for reinstatement have been unlawfully denied reinstatement by their employers, the Board may award the strikers backpay starting at the time they should have been reinstated.

A strike is protected under the Act only if it is a “complete” strike; striking employees lose the protection of the Act if they engage in a “partial” strike of picking and choosing the work they will do or when they will do it or otherwise attempting to set their own terms and conditions of employment. Additionally, a strike in support of a union unfair labor practice, or one that would cause an employer to commit an unfair labor practice, may be unlawful.
​
Section 8(b)(4) of the Act prohibits strikes for certain purposes even though they are not necessarily unlawful if achieved by other means. An example would be a strike to compel an employer to cease doing business with another employer. While it is not unlawful for an employer to voluntarily stop doing business with another employer, and it is not unlawful for a union to request that it do so, it is unlawful for the union to strike to force the employer to do so.

A strike that violates a no-strike provision of a contract is not protected by the Act and the striking employees can be discharged or disciplined—unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. However, not all refusals to work are considered strikes and thus violations of no-strike provisions. Employees may participate in walkouts due to abnormally dangerous conditions, for example.

Section 8(d) provides that when either party desires to terminate or change an existing collective bargaining agreement, it must comply with certain conditions, and if these conditions are not met, a strike to terminate or change a contract is unlawful. 

​Strikers who engage in serious misconduct during a strike may be refused reinstatement to their jobs. Serious misconduct includes violence and threats of violence. The U.S. Supreme Court has ruled that “sitdown” strikes, where employees simply stay in the plant and refuse to work, thus depriving the owner of the property, is also not protected.

A union may waive, through bargaining, the employees’ right to strike during the term of a collective bargaining agreement, and may contract for a no-strike obligation, either express or implied. A broad and unqualified no-strike provision may prohibit a strike contesting any portion of the contract’s provisions, including an employer’s refusal to comply with an arbitration award.
​
Unfair labor practice strikes are immune from a general no-strike clause if the practice is serious and destructive of the foundation of the agreement, and even an explicit no-strike clause does not waive the right of employees to strike against unfair labor practices. An agreement to arbitrate labor disputes gives rise to an implied obligation not to strike over the specified disputes. 

​Most private sector employees have a protected right to strike to protest employer decisions. As this blog has illustrated, however, there are critical limitations and qualifications on that right that employees and labor organizations need to keep in mind. 

Federal courts in Texas have been busy this year, issuing many significant decisions impacting employment litigation that employees should be cognizant of, as many of these decisions are precedent-setting and impact an employee’s ability to establish a prima facie case.

The EEOC provides an intake form that assists employees in determining coverage of their claims. The Fifth Circuit made clear it will not consider these intake forms as an employee's formal charge against his or her employer.

In Ernst v. Methodist Hospital System, 2021 U.S. App. LEXIS 17015 (5th Cir. 2021) (unpublished), an employee’s EEOC intake questionnaire did not satisfy Title VII’s charge-filing requirements because it was not verified as required by EEOC regulations and the employer was not provided with notice of the questionnaire or the claims therein. This is an important distinction employees should be aware of when pursuing an EEOC claim against an employer, as failing to timely file an EEOC charge may bar an employee's ability to pursue litigation.

​One element of an age discrimination claim is that the plaintiff must show he or she was replaced by a substantially younger employee. Many courts require that the replacement is not themselves within the protected group of employees 40 years or older. 

The court in Fenley v. Texas Plumbing Supply Company, Inc., No. 14-19-00851, 2021 WL 1881273 (Tex. App.—Houston [14th Dist.] May 11, 2021) (mem. op.), held direct evidence can support a prima facie showing of age discrimination even where the plaintiff is replaced by someone 40 or older. 

The court further ruled on another important conflict among courts reviewing age discrimination claims--whether the "same actor inference" absolutely precludes the possibility of bias. Many courts also apply the “same actor inference” to find that if the person wo hired the plaintiff is the same person who fired the plaintiff, a factfinder should infer that person was not biased. ​The court held that the same actor inference can be overcome by direct evidence of bias. In this case, there was direct evidence that a supervisor told the 70-year-old plaintiff “you are too old for this job.” 

To be actionable, sexual harassment must be "sufficiently severe or pervasive" to alter the terms and conditions of the victim's employment. The plaintiff in Rivas v. Estech Systems, Inc., No. 06-20-00058-CV, 2021 WL 2231262 (Tex. App.—Texarkana June 3, 2021) (mem. op.) sued her employer for sexual harassment after finding her supervisor had placed a camera under her desk aimed at her seat. 

The court held that the plaintiff could establish “severe or pervasive” harassment despite her being unaware of the camera for several months and despite the employer immediately removing it and firing the supervisor upon discovering the camera. Thus, a single event alone can be severe or pervasive.

The court further held that an employer must prove both elements of the Ellerth affirmative defense, which requires the employer show: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 

The Texas Supreme Court in Aerotek, Inc. v. Boyd, __ S.W.3d __, 2021 WL 2172538 (Tex. May 28, 2021), made it easier for employers to establish assent to employee documents and agreements by an employee’s electronic signature. 

The court relied upon a provision of the Texas Uniform Electronics Transactions Act that provides “[a]n electronic record or electronic signature is attributable to a person [by] showing. . .the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” 

Standing alone, the plaintiff employees’ sworn denials that the electronic signatures at issue here with respect to an arbitration agreement was insufficient to create an issue of fact.

In a disappointing blow to disability discrimination plaintiffs, the court in Dillard v. SNC-Lavalin Engineers & Constructors Inc., __ S.W.3 __, 2021 WL 2149219 (Tex. App.—Houston [1st Dist.] 2021, held that a plaintiff’s allegation that he had diabetes and took medication for diabetes, standing alone, did not create an issue of fact whether he was disabled because he failed to show the diabetes caused him to be “substantially limited.” 

Despite the ADA requiring that the substantial limitation requirement shall be construed broadly in favor of expansive coverage and diabetes being virtually always found to impose a substantial limitation under federal regulations, the court held a determination of whether an impairment is substantially limiting still requires an individualized assessment. 

​Thus, a plaintiff must also show that diabetes substantially limits the plaintiff’s endocrine function or another major life activity. Diabetes is not a “per se” disability.

As this sample of recent decisions by federal courts in Texas illustrates, the required proof and procedural steps of employment litigation is ever-evolving and changing. Employees should always consult an experienced employment attorney before taking any steps that could jeopardize their claims.

​In her first memo as General Counsel, published August 12, 2021, Jennifer A. Abruzzo outlined a new set of ambitious priorities that suggest many upcoming changes to current Board law, many of which would reverse Trump-era rulings largely pro-employer in nature. This blog will discuss some of the most significant initiatives addressed in section 2 of that memo.

The first initiative addressed involved cases involving the applicability of three Board decisions related to employee status:

1. Velox Express, Inc., 368 NLRB No. 61 (2017), where the Board refused to find a violation based on an employer misclassifying drivers as independent contractors.
2. Brevard Achievement Center, Inc., 342 NLRB 982 (2004), where the Board declined to extend the Act’s coverage to individuals with disabilities on the grounds that they were not employees within the meaning of Section 2(3) of the Act when working in a rehabilitative settin.
3. Toering Electric Co., 351 NLRB 225 (2007), where the Board required a showing that an individual is someone genuinely interested in seeking to establish an employment relationship to prove entitlement to Section 2(3) status as an employee under the Act.

Abruzzo also addressed cases involving an employer’s duty to recognize and/or bargain with a union, specifically citing the following cases:

1. The George Washington University Hospital, 370 NLRB No. 118 (2021), where the Board found surface bargaining lawful.
2. Dubuque Packing Co., 303 NLRB 386 (1981), where the Board announced a new test in a refusal to furnish information related to a relocation whereby the burden is on the General Counsel to establish that the employer’s decision involved a relocation of unit work unaccompanied by a basic change in the nature of the employer’s operation.
3. Shaw’s Supermarkets, Inc., 350 NLRB 585 (2007), where the Board permitted mid-term withdrawals of recognition where they occur after the third year of a contract of longer duration. Abruzzo explicitly noted the possibility of overruling this decision.
4. Joy Silk Mills, Inc., 85 NLRB 1263 (1949), where the Board held an employer could refuse to bargain with a union that claimed a majority of authorization cards only if the employer had a “good faith doubt” about the union’s claimed majority status.

The next initiative encompassed cases related to employees’ strike and picket rights:

1. Hot Shoppes, 146 NLRB 802 (1964), where the Board addressed an allegation that an employer’s permanent replacement of economic strikers had an unlawful motive
2. Wal-Mart Stores, 368 NLRB No. 24 (2019), where the Board broadly defined an intermittent strike
3. Preferred Building Services, Inc., 366 NLRB No. 159 (2018), where the Board found employees picketed with a secondary object and lost the Act’s protection when they protested sexual harassment and unsafe working conditions
4. Service Electric Co., 281 NLRB 633 (1986), where the Board allowed an employer to unilaterally set terms and conditions of employment for replacements even where those terms are superior to those that had been paid to striking unit employees

In a slightly broader topic, Abruzzo then turned to cases involving Section 7 rights more generally:

1. Tri Cast, 274 NLRB 377 (1985), where the Board approved employer statements that employee access to management will be limited if employees opt for union representation
2. Crown Bolt, 343 NLRB 776 (2004), where the Board presumed dissemination in cases involving an employer’s threat of plant closure where there is little evidence of dissemination to other employees
3. Cordua Restaurants, Inc., 368 NLRB No. 43 (2019), where the Board found, among other things, that an employer does not violate the Act by promulgating a mandatory arbitration agreement in response to employees engaging in collective action 

​In total, Abruzzo identified more than 40 Trump-era decisions that should be reconsidered, modified, or reversed, and further expressed an interest in reviewing many other areas of labor law. This is welcome news for labor organizations that have grown accustomed to the Trump board’s pro-employer agenda, restricting their ability to organize in the workplace and undermining workers’ bargaining rights.
With the recent appointments of Gwynne Wilcox and David Prouty, both union lawyers, and this new General Counsel set on returning the rights the prior administrations stripped from unions across the country, employees and unions can look forward to much needed changes.

 ​At the time of this blog’s publication, at least 60% of the U.S. population has received at least one dose of the COVID-19 vaccine and 51% of the population has been fully vaccinated. Despite these promising figures, on July 27, 2021, the CDC released updated guidance on the need for urgently increasing vaccination coverage and a recommendation for even fully vaccinated people to wear masks in public indoor spaces.

​Vaccination requirements are gaining in prevalence in various settings. More than 200 colleges and universities are requiring vaccination of at least some students or employees ahead of the fall semester, and many companies have already announced vaccine requirements for at least some of their employees. 

​Under federal law, an employer may require all of its onsite employees to get vaccinated against the coronavirus, subject to two exceptions:
​

1. An employee’s religious belief.
2. An employee’s medical condition(s).

Note: Employers may also be subject to collective bargaining agreements that require them to negotiate with represented employees prior to implementing a unilateral change in vaccination requirements.

Under Title VII of the Civil Rights Act of 1964, employers with 15 or more employees cannot discriminate against employees based on, in relevant part, their religion. To receive Title VII protection, an employee must demonstrate that they have a sincerely held religious belief. They must also show that not receiving a vaccine would not impose an undue hardship on the employer. 

An employee with a qualifying medical condition recognized by the Americans with Disabilities Act of 1990 may also be excepted from an employer’s vaccine requirement if that medical condition will put the employee’s health at risk if they receive the vaccination. Again, however, the exemption must not place an undue hardship on the employer. 

9 states have enacted 11 laws with prohibitions on vaccine mandates, with many prohibiting state and local government officials from requiring vaccinations. Private schools and employers in those states can thus still enact vaccine mandates.

​Many companies have already announced a coronavirus vaccination mandate of at least some of its employees. Delta Air Lines, DoorDash, Facebook, Ford, Google, Lyft, Microsoft, Netflix, Twitter, Uber, Walgreens, The Walt Disney Company, and Walmart are all among those companies who are requiring at least some of its employees to demonstrate proof of vaccination as a condition of their employment.

On April 1, 2021, Houston Methodist Hospital announced a policy requiring employees be vaccinated against the coronavirus by June 7, 2021. The named plaintiff and 116 other employees sued to block the requirement and the terminations of those who refused to comply with the mandate, arguing the employer unlawfully forced its employees to be injected or be fired.

The Southern District of Texas, in its order dismissing the lawsuit, observed that Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker. Of course, receiving a COVID-19 vaccination is not an illegal act and it carries no criminal penalties.

The court likewise dismissed the argument that the injection requirement violates public policy, as Texas does not recognize this exception to at-will employment. In concluding remarks, District Judge Lynn N. Hughes succinctly noted: “Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”

Employers may elect to require vaccinations in their workplace, but they must comply with various state and federal laws. With the ever-changing guidance from the CDC and the varying approaches of state governments with respect to vaccinations, employees would be wise to seek legal counsel for any questions about an employer’s right to require them to receive a vaccine. 

Our firm has recently blogged about Senate Bill 45 and its potential impact on sexual harassment claims in Texas. This blog addresses a collateral issue that employees should consider when filing their sexual harassment lawsuits.

After September 1, 2021, supervisors, managers, human resources professionals, other employees, and third parties may be named individually as defendants in an employee’s sexual harassment complaint and held personally liable for damages. This is welcome news for employees wishing to hold individuals, and not just their employer, liable for unlawful conduct.

However, employees should be aware this could potentially foreclose an employer’s ability to remove a sexual harassment lawsuit to federal court (often viewed as more favorable for employers than state courts) given that the parties would no longer have diversity of jurisdiction. If a non-diverse supervisor, human resources professional, or other employee (a Texas resident) is added as a defendant to the lawsuit, the employer cannot then remove to federal court based on the diversity of the parties, as complete diversity of all parties is required. ​

Employers may therefore resort to a process known as “snap removal” to remove the case to federal court on diversity grounds before the defendant is served. Snap removal takes advantage of the plain language of the “forum defendant rule” in the removal statute, which states a suit that is “otherwise removable solely on the basis of [diversity of citizenship] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. Section 1441(b)(2). Thus, the technique allows an employer to remove a case to federal court on diversity grounds after the suit is filed in state court, but before the forum defendant is served.

Going forward, the best practice for employees concerned about snap removal when joining multiple defendants may be to sue the resident defendant (so diversity does not entitle an employer to remove to federal court) and then amend to include the non-resident employer after service on the resident has been effected, thus eliminating the option entirely.
 
However, not every employee may be concerned with removal to federal court, and indeed some employees may actually prefer to litigate in federal court depending on the unique circumstances of their case. Choice of venue can play a pivotal role in an employee’s lawsuit, so these issues should all be discussed with a competent employment attorney intimately familiar with the advantages and disadvantages of bringing a particular suit to state or federal court.

The National Labor Relations Act (NLRA) expressly gives employees the right to self-organize, form, join, or assist labor organizations, bargain collectively through representatives of their own choosing, and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

​An employer who fires, suspends, or otherwise penalizes an employee for taking part in protected group activity is liable under the Act

Regardless of whether an employee is represented by a union, Section 7 of the Act protects an employee’s right to come together with coworkers to improve their working conditions--including when they come together online via social media websites like Facebook, Instagram, Snapchat, and others.

​Not only can a social media post be concerted activity, but so too can a comment or a “like.”

However, not all social media activity is protected by the NLRA. To get the Act’s protection, your statement must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management.

Statements that are egregiously offensive or knowingly and deliberately false are not protected.

Public disparagements of the employer’s products or services without relating those complaints to any labor controversy are similarly not protected, nor are individual complaints about some aspect of work.
​
That is not to say that individual employees cannot engage in protected concerted activity.

A single employee may engage in concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

What constitutes a statement so egregious that it loses the Act’s protection depends on many factors and is subject to a balancing test between the employee’s right to engage in concerted activity and the employer’s right to maintain order, respect, and a workplace free from discrimination.

For example, the Board has found the following language not too egregious or abusive:

In agreeing with the Board, the Second Circuit reasoned that, although the employee’s message was “dominated by vulgar attacks,” the subject matter of the message included workplace concerns that was made in the midst of employer hostility toward employees’ union activities.
​
Thus, this “outburst” was “not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment.” Also of importance, the employer consistently tolerated profanity among its workers, and the outburst was not in the immediate presence of customers or disruptive to a work event.

Even where an employee does not directly disparage the employer’s products or services, if the employee insults the employer’s customers, the Board will find the statement similarly disloyal and thus unprotected.

​The Board recently found the below language disloyal: