September Legal Report: Coercion, Marijuana, and More
COERCION. In the first decision of its kind, the U.S. National Labor Relations Board (NLRB) has ruled that an employer committed an unfair labor practice when a manager texted an employee asking whether the employee’s loyalties lay with the company or the labor union.
RHCG Safety Corp. (Redhook) is a general construction contractor in New York City. During an organizing campaign during the summer of 2015, a construction union attempted to convince employees to vote in favor of union representation. During the campaign, Redhook employee Claudio Anderson needed to take time off to travel to Panama to care for his mother.
Anderson’s supervisor, David Scherrer, allowed Anderson to take the time off. Before Anderson left for Panama, however, he visited the union’s offices and signed an authorization card indicating that he supported union representation. His mother’s health also improved at the same time, so Anderson decided not to take a leave of absence from work and texted Scherrer about returning to work.
Scherrer responded, according to NLRB documents, with a text message that asked: “What’s going on with u? U working for Redhook or u working in the union? U got to tell me what’s going on.”
Anderson texted back that he’d been to the Redhook office that day to speak to Scherrer, but had missed him. He got no response, and two days later Scherrer texted Anderson to tell him he’d given his position to someone else.
The union then filed an unfair labor practice charge against Redhook, alleging that the company violated the National Labor Relations Act (NLRA) through Scherrer’s text messages.
The NLRB ruled in the union’s favor, finding that the texts violated the NLRA because they were sent in response to an employee’s inquiry about whether he should return to work.
“By juxtaposing working with Redhook with working in the union, Scherrer’s text strongly suggested that the two were incompatible,” the NLRB said in its ruling.
Redhook had also argued that text messages could not be considered “unlawful interrogation.” The board, however, did not find this argument persuasive because previous decisions found that interrogations do not have to be in-person to violate the NLRA—that violations can stem from coercive writings or phone calls.
Applying these same principles, the NLRB said there was “no reason why [there should be] a safe harbor for coercive employer interrogations via text messages.”
The board ordered Redhook to reinstate Anderson to his former job or a substantially equivalent position; compensate him for any loss of earnings; cease and desist in interrogating employees about their union activities; and post a notice that the company’s actions violated the NLRA. (RHCG Safety Corp. and Construction & General Building Laborers, Local 79, LIUNA, U.S. National Labor Relations Board, No. 29-CA-161261 and 29-RC-157827, 2017)
MARIJUANA. An employer acted illegally when it failed to hire a medical marijuana user because she disclosed she could not pass a preemployment drug test, a Rhode Island state court has ruled.
The ruling stems from a case brought by Christine Callaghan, who in June 2014 was a master’s student studying textiles at the University of Rhode Island. To meet a graduation requirement, she applied for an internship with Darlington Fabrics—a division of the Moore Company.
Callaghan met with Darlington Human Resources Coordinator Karen McGrath and signed a Fitness for Duty Statement, which said she would have to take a drug test before being hired as an intern. During this meeting, Callaghan also told McGrath that she had a medical marijuana card in compliance with Rhode Island’s Hawkins-Slater Medical Marijuana Act.
A few days after the meeting, McGrath and a colleague called Callaghan and asked if she was currently using medical marijuana. Callaghan said she was, according to court documents, so she would test positive on her preemployment drug screening. She also said that she was allergic to many other painkillers, and that she would not bring marijuana into the workplace or use it there.
McGrath then told Callaghan that a positive test would “prevent the company from hiring her,” the lawsuit said. McGrath and her colleague then ended the call.
They called Callaghan later that afternoon and told her that Darlington could not hire her because, according to court documents, “Ms. Callaghan put the corporation on notice that she was currently using marijuana, would not stop using marijuana while employed by the company, and could not pass the required preemployment drug test, and thus could not comply with the corporation’s drug-free workplace policy.”
Callaghan then filed a lawsuit, charging that Darling’s decision not to hire her was a violation of the Hawkins-Slater Act, a violation of the Rhode Island Civil Rights Act, and employment discrimination.
The suit reached the Rhode Island Superior Court, which ruled in Callaghan’s favor because of the language in the Hawkins-Slater Act that says “no school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize a person solely for his or her status as a cardholder.”
Callaghan disclosed to Darling that she was a medical marijuana card holder and user; Darling’s refusal to hire her after she made the disclosure violated state law, the court said.
Judge Richard Licht also wrote in his opinion that Darling’s position would place medical marijuana users in a worse position than recreational users who might also apply for jobs with the company. For instance, a recreational marijuana user could stop using for long enough to pass the preemployment drug test and not be subject to future tests.
“The medical user would not be able to cease for long enough to pass the drug test, even though his or her use is necessary to treat or alleviate pain, nausea, and other symptoms associated with certain debilitating medical conditions,” Licht explained. (Callaghan v. Darlington Fabrics, Rhode Island Superior Court, No. PC-2014-5680, 2017)
COMMUNICATIONS. U.K. communications regulator Ofcom fined mobile network operator Three £1.8 million (approximately U.S. $2.4 million) for weaknesses in its emergency call network that is required to ensure uninterrupted access to emergency services.
Three notified Ofcom in October 2016 of a temporary loss of service in Kent, Hampshire, and parts of London. Ofcom investigated the issue, and found that emergency calls from customers in these areas had to pass through a single data center to reach emergency services.
“This meant that Three’s emergency call service was vulnerable to a single point of failure,” Ofcom said in a press release. “Three’s network should have been able to automatically divert emergency calls via back-up routes in the event of a local outage. But these back-up routes would also have failed because they were all directed through this one point.”
Ofcom issued the penalty to reflect the “seriousness of the breach, given the potential impact on public health and safety,” it said.
ENCRYPTION. The European Parliament Committee on Civil Liberties, Justice, and Home Affairs has endorsed a new amendment to require end-to-end encryption on all communications.
The committee released a draft proposal (amendment 16) that recommends introducing regulations to enforce end-to-end encryption on all communications to protect European Union (EU) citizens’ fundamental privacy rights.
“Furthermore, when encryption of electronic communications data is used, decryption, reverse engineering, or monitoring of such communications shall be prohibited,” the proposal said. “Member states shall not impose any obligations on electronic communications service providers that would result in the weakening of the security and encryption of their networks and services.”
The proposal also calls for a ban on “backdoors” into encrypted messaging apps because electronic communications data should be treated as confidential data.
If adopted, the proposal would be at odds with the U.K., U.S., Australia, and even some European governments’ stances that technology firms should create backdoors to help fight terrorism.
UTILITIES. The U.S. House of Representatives is considering legislation that aims to reduce the threat of wildfires to electric transmission and distribution facilities.
The resolution (H.R. 1873) would amend the Federal Land Policy and Management Act of 1976 to ensure that all existing and future rights-of-way established by grant, special use authorization, and easement for electrical transmission and distribution facilities include provisions for utility vegetation management, inspection, and operation and maintenance activities.
The resolution would require transmission and distribution facility owners and operators to create a plan for vegetation management that “provides for the long-term, cost-effective, efficient and timely management of facilities and vegetation within the width of the right-of-way and adjacent federal lands to enhance electricity reliability, promote public safety, and avoid fire hazards.”
The resolution was introduced by U.S. Rep. Doug LaMalfa (R-CA) and, as of press time, had 20 bipartisan cosponsors.
“Under this legislation, rural electric co-ops, utilities, and municipal power providers will be able to proactively remove hazardous trees before they become problems, not after they’ve caused a fire,” LaMalfa said in a statement.
ELSEWHERE IN THE COURTS
Robert Doggart, 65, of Signal Mountain, Tennessee, was sentenced to 235 months in prison for soliciting another person to burn down a mosque in New York—a violation of U.S. civil rights laws. In February 2015, a confidential source told the FBI that Doggart was recruiting people online to carry out an armed attack on Islamberg, a community in New York that is home to a large number of Muslims. “Doggart specifically targeted the mosque because it was a religious building, and he discussed burning it down or blowing it up with a Molotov cocktail or other explosive device,” according to the U.S. Department of Justice. (U.S. v. Doggart, U.S. District Court for the Eastern District of Tennessee at Chattanooga, No. 1:15-cr-39-CLC-SKL-1, 2017)
Three Nigerian nationals were sentenced for their roles in a large scale international fraud network. The men were extradited from South Africa and found guilty of mail fraud, wire fraud, identity theft, credit card fraud, and theft of government property for their role in several Internet-based fraud schemes that used victims to cash counterfeit checks and money orders, used stolen credit card numbers to purchase electronics, and used stolen personal identification information to take over victims’ bank accounts, causing millions of dollars in losses. (U.S. v. Ayelotan, U.S. District Court for the Southern District of Mississippi, No. 1:14cr33, 2017)
Rosebud Restaurants, Inc., will pay $1.9 million and other relief to settle a class race discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). According to the EEOC, 13 of Rosebud’s restaurants “refused to hire African-Americans because of their race” and Rosebud’s owner “used racial slurs to refer to blacks” in violation of Title VII of the Civil Rights Act of 1964. The settlement requires Rosebud to pay $1.9 million to African-American applicants Rosebud did not hire, along with requiring it to create hiring goals for qualified black applicants and prohibiting it from engaging in race discrimination in the future. (EEOC v. Rosebud, U.S. District Court for the Northern District of Illinois, No. 13-cv-6656, 2017)