Fast food workers strike, nationally, locally

While it seems fast food workers may be getting the cart before the horse by striking before they have a bargaining representative, such tactics are certainly protected conduct, it only remains to be seen if it is effective in causing upward adjustments to pay or other terms and conditions of employment. We even have a West Bank event being reported. Collective actions like these, even where there is no "official" union representation can be protected activity under the National Labor Relations Act. Employers should proceed with caution, and the advice of a knowledgeable labor practitioner when responding to strikes or other collective activity by employees.

Aging of U.S. population

There are a lot of issues which affect the workplace. One is the effect of age and longevity. Wonk Wire has a dynamic chart reflecting the aging of the general population since 1900, and projecting out the change through 2060. One takeaway, a 40 year old has a reasonable probability of being around in 2060. Fascinating.

Wearing the right hat

An administrative law judge has ruled an employer's policy prohibiting employees from wearing baseball caps other than the employer's interferes with employees exercise of section 7 rights. Quad Graphics 32-CA-062242. Usually wearing union insignia at work is presumptively a valid exercise of rights protected by the NLRA. An employer in retail and or healthcare settings has a bit more leeway in mandating dress codes. An employer must establish special circumstances to justify infringement of the Section 7 right.

In this case the employer argued 1) safety concerns (keeping hair out of machinery), 2) preventing gang activity and 3) promoting effective customer interaction. Each of the proffered justifications was rejected. The "safety" argument applied equally to the employer's cap as well as similarly styled caps including those with union insignia or other protected expressive content. The "gang activity" rationale failed since there was no evidence of gang activity. The "customer interaction" exception failed because there was no evidence the employees interacted with customers.

Fifth Circuit reverses SJ in employers favor

A Fifth Circuit panel (Davis, Graves and Higginson) in a per curium opinion, EEOC v. DynMcDermott Petroleum Operations Co., No. 12-40424 (July 26, 2013)  has reversed a Texas federal district court's grant of summary judgement to New Orleans based DynMcDermott. The case involved the decision not to rehire a former employee into a position he had previous experience related to performance. Plaintiff's evidence of age and disability discrimination included statements about needing a younger candidate and the plaintiff's wife's cancer. The appeals court parses the evidence and does a good job of explaining the existence of material fact disputes sufficient to compel reversal.