Skip to main content

What I've Been Reading This Week


We have a little bit of everything this week, right?  For those interested in a jurisdictional argument, we have a USERRA case pending in the Texas Supreme Court.  For those looking for a labor law development, we have a recent ruling from an administrative law judge in regard to a tweet by Tesla CEO Elon Musk.  As well, there is something for readers interested in an HR related matters, specifically as it applies to bullying in the workplace.

As always, below are a couple articles that caught my eye this week.


Texas Supreme Court to Address Whether USERRA Claim Can Be Brought Against the State of Texas

Earlier this year, the Texas Supreme Court accepted a case, Torres v. Texas Department of Public Safety, and will consider whether a claimant can bring a USERRA claim against the State of Texas in state court (rather than federal court.)  (For those needing a refresher, the Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA for short, prohibits adverse employment actions against employees based upon their military service.)  In this case, Le Roy Torres was part of the U.S. Army Reserves while employed as a State Trooper for the Texas Department of Public Safety ("DPS".)  After serving in Iraq and being honorably discharged after developing a breathing problem, he alleged DPS failed to accommodate his reemployment after he returned from Iraq.  While Section 4323(b)(2) of USERRA allows service members to sue states as employers in state courts, as a matter of first impression, a court of appeals in Texas held Section 4323(b)(2) unconstitutional and foreclosed allowing Texas service members to sue under USERRA if they worked for the State of Texas.  This will be an interesting case to see unfold, as this jurisdictional dispute plays out before the Supreme Court.


NLRB: Elon Musk's Tweet Violated Labor Law

At the end of September, an administrative law judge for the National Labor Relations Board ("NLRB") issued a ruling which found that Tesla CEO Elon Musk violated the National Labor Relations Act ("NLRA") when he sent a tweet suggesting that Tesla employees that voted to unionize would lose their company stock options.  The tweet read as follows:  "Nothing stopping Tesla team at our car plant from union voting.  Could do so tmrw if they wanted.  But why pay union dues & give up stock options for nothing?  Our safety record is 2X better than when plant was UAW & everybody already gets healthcare."  (Section 8(a)(1) of the NLRA prohibits employers from interfereing with, constraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the NLRA.  Threatening employees with a loss of benefits if they support a union, engage in union activity, or select a union to represent them, is prohibited.)  As the article from The National Law Review points out, the administrative law judge's ruling can be appealed to the full NLRB.  With a more employer friendly NLRB, perhaps the full NLRB could go the other way?  Time will tell.  Let us see if the administrative law judge's ruling is appealed though.


Curbing Bullying in the Workplace

HRDive wrote a recent article that touched on bullying in the workplace and a few things HR should keep in mind to help limit it.  I call attention to one particular part of the article which clarifies the differences between bullying and harassment:  bullying is problematic, but not against the law; harassment on the other hand is unlawful.  Using that as a springboard into ways that HR can work to curb bullying, I think this article has something for everyone.

Comments

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum,...

San Diego Rolls Back Vaccine Mandate For City Workers

Last Tuesday, the San Diego City Council voted to do away with the vaccine mandate for city employees. The city’s vaccine mandate that was in place required city workers to get the coronavirus vaccine or risk termination.  Perhaps to this surprise of no one, the city’s policy came under fire with 14 employees being terminated and over 100 other employees resigning.  With the coronavirus subsiding, including in Southern California, the San Diego City Council took action. Now, bear in mind, the repeal of the vaccine mandate does not take place immediately. With that being said, the mandate will be repealed March 8th.  I suppose the question now is, what other cities or regions follow San Diego’s lead? For additional information:   https://www.sandiegouniontribune.com/news/politics/story/2023-01-24/san-diego-repeals-controversial-covid-19-vaccine-mandate-citing-drop-in-cases-hospitalizations

NLRB: Former Employee Cannot Be Barred From Work Premises After Filing Wage Suit

MEI-GSR Holdings, LLC - NLRB Facts :  MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino ("GSR") operated a facility that included a hotel, casino, restaurant, clubs, bars, and a pool which were all open to the general public.  Tiffany Sargent ("Sargent") was briefly employed by GSR as a "beverage supervisor" in December of 2012.  After her employment ended, Sargent continued to socialize at one of the clubs.  GSR had a long standing practice of allowing former employees to patronize its facility and did not prohibit Sargent from doing so.  In June of 2013, Sargent and another employee filed a class and collective action against GSR for alleged unpaid wages, in violation of the Fair Labor Standards Act and Nevada law.  In July of 2014, GSR denied Sargent access to an event at one of the clubs.  GSR followed up with a letter and stated that with the on-going litigation (from the wage suit), it decided to bar Sargent from the premises. ...