The short answer is that the dry cleaner, cussing, and marijuana are the subjects of this Anniversary Pop Quiz edition of The Bullard Edge
. We are a year old today. On April 8, 2014 we debuted with a short post about workplace appearance policies and religious accommodation. Since then we have covered everything from marijuana in the workplace to family leave for extended family to veterans’ preference laws to administrative follies. We have brought this to you with letters from the (fictional) mailbag, favorite cases remembered, case notes, and pop quizzes, which is the vehicle we use today. (Note, April 8 is also the anniversary of the creation of the Works Progress Administration
in 1935, Hank Aaron’s 715th homerun
in 1974, and the debut of Twin Peaks
in 1990. (Who says this blog isn’t educational?)
: True or False
As the saying goes, pants make the person. The question is, though, what do those same pants do for the person who is a lawyer? In 2005 a dispute arose between a lawyer and his dry cleaner regarding a pair of pretty special pants. The lawyer took his pants to a dry cleaner promising “same day” service and “guaranteed” satisfaction. Two days later he received a clean pair of pants that he claimed were not his. The lawyer was upset and demanded the dry cleaner pay the price of the pants ~ which allegedly was in excess of $1000. When negotiation failed to resolve the matter, the lawyer filed a breach of promise lawsuit. The case did go to trial and the jury returned a verdict in favor of the lawyer. True or false?
: True or False
According to the NLRB, it is ok for an employee to call his/her supervisor a “nasty $#!!&*^” in the workplace, provided that the moniker is used in the spirit of union organizing. True or false?
: True or False
Late last year Congress quietly defunded federal drug enforcement efforts
against marijuana retailers who are operating according to their state’s medical marijuana law. This had been the enforcement policy of the Obama Administration for some time. As a result of this change in the law, employers in states having medical marijuana laws (like Oregon, Washington and California) similarly must re-evaluate enforcement of their workplace drug and alcohol policies with respect to medical marijuana users. True or false?
Pencils down. Let’s see how you did (partial credit may be considered for illustrations).
Answer to Question 1: False.
While The Bullard Edge
is not in a position to assess the merits of the claims, we can confirm that in 2005 a District of Columbia administrative law judge got into a dispute with a dry cleaner regarding pants left for dry cleaning. The dry cleaner business had a sign in the shop promising same day service and satisfaction guaranteed. Instead of receiving his own clean pants on the same day as drop off, the lawyer claimed that he received a different pair of pants several days later. The lawyer made numerous settlement demands, but the parties were unable to reach resolution. The lawyer eventually sued
the dry cleaner for allegedly failing to meet its promise of "satisfaction guaranteed” and sought damages of $54 million (reduced from the originally sought amount of $67 million). This matter did go to trial before a judge, who ruled in favor of the dry cleaner
. That decision was upheld on appeal
. Even after the failed appeal, litigation related to the pair of pants and the dry cleaner continued
for a number of years
Answer to Question 2: True.
On March 31, 2015, in the matter of PIER SIXTY, LLC and Hernan Perez and Evelyn Gonzalez
, the NLRB affirmed
an administrative law judge’s decision in favor of an employee who, “frustrated” with his supervisor, took time during a rest break to post profanities about his supervisor on Facebook. The Board considered the “totality of the circumstances” (including the amount of cursing by management in the workplace) in siding with the employee, as follows: “For the reasons stated by the judge, we agree with her findings that the Respondent violated Section 8(a)(1) by: (1) unlawfully threatening employees with the loss of current benefits, job loss and discharge, and job loss due to lost business, and informing employees that bargaining would start from scratch, and (2) disparately applying a ‘no talk’ rule.”
For support, the Board in Pier Sixty
cited to its decision late last year in Triple Play Sports Bar and Grille
. As discussed by my colleague Jenn Sabovik in a Bullard Alert
, in that case the Board essentially announced a “Triple Play” for determining when employee social media posts lose protection as concerted activity under the National Labor Relations Act. Here is the way Jenn articulated the test.
As applied by the NLRB in Triple Play, I have summarized those standards into a new two-prong test, which I am calling the “Triple Play Test.” (Feel free to “like” that.) Under the two-prong Triple Play Test, employees’ social media statements and “likes” may lose the protection of the Act if:
(1) they amount to DISLOYAL DISPARAGEMENT because they (a) are aimed at the general public, (b) are not related to and/or do not disclose the existence of an ongoing labor dispute, (c) disparage the company’s products and/or services, or undermine its reputation;
(2) they are DEFAMATORY because they are maliciously untrue (i.e., they are made with knowledge of their falsity, or with reckless disregard for their truth or falsity).
Future developments in the NLRB’s social media cases may include decisions addressing [A] whether the NLRB will apply the Triple Play Test or Atlantic Steel to social media discussions involving direct online confrontations between supervisors and employees, and [B] whether an employer engages in “unlawful surveillance” under the Act by viewing or monitoring employees’ social media activities.
Answer to Question 3: False. A resounding False.
This is a trick question (as readers of prior Bullard Edge posts probably could tell ~ see here
). The Congressional action of defunding certain drug interdiction efforts does not change the fact that federal marijuana prohibitions are unchanged. Marijuana, medical and personal, remains a Schedule I controlled substance under the federal Controlled Substances Act. In other words, marijuana is illegal under federal law. Employers are not required to treat marijuana differently.
Further, the state supreme courts that have reviewed the issue have held that the state medical marijuana laws do not require employers to accommodate the medical use of marijuana or engage in the interactive process regarding potential accommodations. For more, see our Bullard Alerts
from April 16, 2010 (Oregon
) and June 10, 2011 (Washington
The state supreme courts that have reviewed the issue have held that the state medical marijuana laws do not require employers to accommodate the medical use of marijuana or engage in the interactive process regarding potential accommodations. See our April 16, 2010 (Oregon)
and June 10, 2011 (Washington
) Bullard Alerts.
A Word About Year 2
: The Bullard Edge
looks forward to covering workplace issues and developments in as entertaining a manner as we can muster. Over Year 1 your responses and comments on the issues have been greatly appreciated and your suggestions have inspired a few posts. Please feel free to continue that performance in Year 2.
The Bullard Edge