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.
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