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NLRB settles complaint based on Facebook posts

The National Labor Relations Board (NLRB) settled the case regarding the termination of a union member/employee who posted negative remarks about her supervisor on her personal Facebook page. The NLRB investigated the situation, ultimately determining that the Facebook postings were "concerted activity" protected by federal law. Section 7 of the National Labor Relations Act (NLRA) restricts employers' attempts to interfere with employees' efforts to work together to improve the terms and conditions of their workplace and employment, and the NLRB argued that restricting an employee's personal use of Facebook and the Internet to communicate with co-workers outside of work was a violation of Section 7.

The company agreed to change its policy that barred workers from disparaging the company or supervisor and will revise a policy that prohibited employees from depicting the company in any way over the Internet without permission.

Takeaway: Because the case was settled, employers don't know what is permissible in handling employee comments. However, all employers should recognize that the NLRB's allegation regarding the company's Internet policy is one that could be brought against any employer on the basis of a written policy that impinges upon employees right to engage in protected concerted activity, which can include discussions, meetings or even a single employee who is discussing the personal character of a supervisor.

FMLA & ADA and Substance Abuse

Employers often struggle to balance their obligation to provide leave or otherwise make reasonable accommodations for employees with substance abuse issues against legitimate business concerns regarding workplace safety, attendance and job performance. Recently the 7th U.S. Circuit Court of Appeals affirmed the dismissal of an employee's claims against Home Depot for violations of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) on the grounds that her substance abuse did not qualify as a serious health condition or a disability.

The employee had requested assistance through the company's Employee Assistance Program (EAP) and in accordance with company policy, Ames was put on paid administrative leave and enrolled into the EAP. The EAP agreement, which Ames signed, provided that she would be subject to periodic alcohol testing.

After a one-month paid leave of absence, Ames completed the requirements for return to work but was subsequently arrested for DUI. This violated the terms of her EAP agreement and she was advised that she would need to schedule an appointment at an alcohol treatment facility for an evaluation.

Ames scheduled her appointment for an evaluation as required by the EAP agreement, but in the meantime she was found to be intoxicated at work as determined by a blood alcohol test. Such conduct was a violation of the company's code of conduct and Home Depot immediately terminated her employment.

In response to the termination, Ames claimed violations of the FMLA and the ADA. The district court determined that Ames failed to establish her entitlement to leave under the FMLA since there was no evidence in the record that she was afflicted with a serious health condition.

The appeals court affirmed the complete dismissal of the employment case against Home Depot. The court agreed with the lower court's determination that Ames did not establish she had a condition entitling her to leave under the FMLA.

In regard to the ADA claim, the court acknowledged that alcoholism might qualify as a disability if it substantially limits one or more major life activities. However, the court found that Ames' condition did not affect her work performance and there was no evidence that it substantially limited her activities at home. Ames v. Home Depot, 7th Cir., No. 09-4151 (Jan. 6, 2011).

Takeaway: The decision provides guidance for employers who are struggling to manage alcoholic or drug-dependent employees at work. The court's opinion identifies measures employers can take to reduce potential liability under the FMLA or ADA. These include:

  • Establishing a policy that clearly defines the consequences for employees who report to work under the influence of alcohol or drugs.
  • Instituting a drug and alcohol testing policy in compliance with both federal and state law.
  • Offer employees the treatment and counseling they need through EAP's or alternative sources. This can include a leave of absence to address the problem. There should be a signed agreement with the employee that clearly defines the employee's obligations and the consequences if the obligations are not met.
  • Document all steps taken to assist the employee.