Firing After Facebook Posts Deemed Unlawful and Leads to Additional Order to Rescind Unrelated Salary Non-Disclosure Policy

In Design Technology Group, LLC d/b/a Bettie Page Clothing, NLRB Case No. 20-CA-035511, the National Labor Relations Board (“NLRB” or “the Board”) concluded that the employer’s conduct of terminating non-union employees for postings on Facebook violated provisions within the National Labor Relations Act (“NLRA” or “the Act”) protecting concerted activity amongst coworkers to improve their working conditions.

The terminated employees in the Bettie Page case worked in a women’s retail store located in California. Amongst other complaints, they had expressed concerns with management about safety arising from the fact that their store remained open for an hour after other stores in the area had closed, and that there was no alarm or security system within the store. After an argument with her manager over this issue, one of the employees, Holli Thomas, posted to her Facebook page that she “needs a new job” and that she was “physically and mentally sickened.” Her post lead to the following exchange on Facebook between the coworkers:

Vanessa Morris: It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime we try to solve conflicts NOTHING GETS DONE!!!!

Holli Thomas: bettie page would roll over in her grave.

Vanessa Morris: She already is girl!

Holli Thomas: 800 miles away yet she’s still continues [to make] our lives miserable. Phenomenal!

Vanessa Morris: And no one’s doing anything about it! Big surprise!

Brittany Johnson: “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.

Vanessa Morris: hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation J see you tomorrow!

Ms. Morris did bring in the book about worker’s rights and placed it in the breakroom. Another sales employee told the manager about the above Facebook postings. The manager accessed that employee’s Facebook page and viewed the postings. The owner was also eventually notified of the postings. A few days later, the manager terminated Ms. Thomas and Ms. Morris because “things were not working out.”

Shortly after she terminated Ms. Thomas and Ms. Morris, the manager noticed that another employee who participated in the Facebook discussion, Brittany Johnson, had received a text message from Ms. Thomas. The manager told Ms. Johnson that she was tempted to put a “gag order” on her so that she would not be able to talk with others about her working conditions. Approximately one month later, the manager discharged Ms. Johnson purportedly for tardiness.

On review, the Board concluded that the postings among the three employees were protected concerted activity under the Act. Moreover, the Board found that the employer’s justifications for the terminations (insubordination, misuse of company computers, and tardiness) were mere pretext for unlawful retaliation against these employees for their protected activity. Moreover, in the course of investigating this unfair labor practice, the Board examined the employer’s handbook and found that the employer had also engaged in an unfair labor practice by maintaining a policy prohibiting employees from disclosing wages and compensation to each other or to any third party. Accordingly, the Board ordered the employer to not only reinstate these three employees with full back pay, but also required the employer to publically rescind their wage and salary non-Disclosure policy at all locations company-wide where this rule was in effect.

This decision reinforces the NLRB’s stance that the rights of both union and non-union employees to protest supervisory conduct that affects working conditions remain protected even when done through social media. Moreover, employers facing such unfair labor charges may find themselves defending employment policies that are unrelated to the underlying conduct — a good reason to review such policies and practices to make sure that they do not violate the Act.

Contact: Emily Wilcheck


Ohio Supreme Court to Rule on Definition of a Compensable Psychiatric Condition Under Ohio Workers’ Compensation Law

Armstrong v. Jurgenson, Case No. 2012-0244, is currently pending before the Ohio Supreme Court. Oral argument was held January 23, 2013. The case concerns a claimant who was diagnosed with sprain/strain injuries and post-traumatic stress disorder (PTSD) following a work related motor vehicle accident. The claimant was rear-ended and the driver of the other vehicle died at the scene. Claimant’s and the employer’s experts agree that claimant developed PTSD in response to the life-threatening nature of the accident and claimant’s observation of the fatally injured driver. In other words, claimant’s PTSD did not arise from the physical injuries claimant sustained in the accident, but rather, as a separate psychiatric condition that occurred contemporaneous to his physical injuries. The question for the Court to decide is whether claimant’s PTSD is a compensable psychiatric injury under Ohio Workers’ Compensation law.

In 2006, the General Assembly modified the definition of a compensable injury under Ohio Workers’ Compensation law. Revised Code 4123.01(C)(1) currently provides that a compensable injury does not include psychiatric conditions unless the conditions have “arisen from” a physical injury or occupational disease. In light of R.C. 4123.01(C)(1), the trial court and appellate court ruled that claimant’s PTSD is not compensable. The Second District Appellate Court explained that the psychiatric condition must have arisen from the injury, i.e., the fact that it occurred at the same time was not sufficient. Claimant argues that psychiatric conditions arising contemporaneous to physical injuries are compensable.

This case will give the Court its first opportunity to address the compensability of a psychiatric condition that occurred contemporaneously with a physical injury. It is also the first significant workers’ compensation issue that will be decided by the newly formulated Court. It will be interesting to see if the Court applies the statute as written and its “arisen from” standard, or if it will employ the more lenient “contemporaneous to” standard. An updated blog will be published once the Court’s decision is announced. Stay tuned.

Contact: Alexander Kipp


Dual Jurisdiction - Ohio Workers’ Compensation

Ohio Revised Code 4213.542 does not permit the filing of a workers’ compensation claim in Ohio if a claimant or the dependents involved in a workers’ compensation claim have been granted an allowed claim in another state. In Smiley v. Professional Staff Mgt. Inc., 2013-Ohio-139, the claimant was involved in a motor vehicle accident while in the performance of her job duties. The claimant worked for a property management company as a regional manager. The claimant was responsible for overseeing and managing properties in both Ohio and Indiana. The claimant’s employer was located in Indiana. The claimant resided in Ohio. The employer filed a claim for the claimant in Indiana. This claim was allowed and both medical bills and compensation were paid in this claim.

Later, the claimant filed a claim in Ohio. This claim was denied by the Industrial Commission of Ohio pursuant to ORC 4123.542. The claimant appealed the denial of this claim to Common Pleas Court who ruled that this denial was proper. The claimant then appealed this decision to the Court of Appeals who upheld this decision. It did not agree that this statute was unconstitutional as argued by the claimant and upheld the decision of the lower court.

To date, all challenges to ORC 4123.542 have been struck down. This case provides the precedence that this statute also applies even when the claimant does not file the claim in another state and this filing results in an allowed claim in that state.

Contact: Brian Tarian