Author Archives: Michael Droke

Michael Droke

About Michael Droke

Mike started his career as a client, not a lawyer. He represented the same company where he worked in management, thus “walking both sides of the street.” As a lawyer, Mike had devoted his practice to practical, results-oriented advice and litigation representation in situations where the law, facts or business risks are ambiguous.

Quirky Question #266: What’s up with Pregnancy Discrimination?

Question: Over the summer, we heard a lot about new guidance on pregnancy discrimination. What do we need to know to ensure we are complying with local, state, and federal laws on pregnancy discrimination?

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NLRB Published Report Concerning Employee Handbook Rules and Policies

On March 18, 2015, NLRB General Counsel Richard Griffin published a Report concerning recent case developments arising in the context of employee handbook rules and policies. The thirty-page Report concludes that many commonly-used policies, if not phrased carefully, may have a chilling effect on Section 7 rights to engage in concerted activity. The policies critiqued by  General Counsel Griffin include, among others, confidentiality policies, employee conduct policies, media policies, trademark and copyright use policies, and conflict of interest policies. The Report’s broad interpretation of potential “reasonable” understandings of handbook provisions concludes that policies such as “be respectful of others and the Company” violate the NLRA. Given the NLRB’s increased focus on handbook policies and this Report’s conclusions regarding a number of frequently utilized policies, employers – even those with employees not represented by labor unions – should carefully review their handbooks to avoid NLRB scrutiny.

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Supreme Court decides Young v. United Parcel Service, Inc., 575 U.S. ___ (2015)

The Supreme Court of the United States recently issued its decision in Young v. United Parcel Service, Inc.  Vacating and remanding the Fourth Circuit’s decision, the Court concluded that the Pregnancy Discrimination Act (“PDA”) “requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work” and that there was a genuine dispute regarding “whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s.”  Young v. United Parcel Service, Inc., 575 U.S. ___ (2015).

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Quirky Question # 238, No Laughing Matter – Company Found Liable for Wrongfully Terminating Independent Contractor’s Agreement

Question:

My company relies on independent contractors, over whom we don’t exert control. They often joke around with each other. I’m not liable for employment discrimination if I terminate one of them after they complain about another, right? Answer→

Quirky Question #229, The Not-Clear-Cut Case for Canning a Cussing Worker

Question:

I’m the owner of a small record store. I have 13 sales clerks and 4 back room employees. Things aren’t great these days – but we get by. Fortunately, while people listen to music on their phones and the internet way more than they do CDs, we’ve refocused ourselves toward vintage record collectors and hardware sales.

I just fired a sales clerk last week for what I thought was pretty obviously unacceptable behavior. He started complaining to me the other day about the way I pay commissions. I pay my sales clerks $10 per hour plus a small commission on certain items in the store. For instance, if they move a record-player, or a set of headphones, or a tube amplifier, they get 2% of the sale in their next check. Because this guy worked on the day shifts, he felt like he did not have as good a shot at selling the big-ticket pieces of equipment, which are often sold in the evening. He pestered me for weeks to reduce the commissions on the hardware, and to give him a commission on the used records that he sells during the day in order to make it more “fair” for him. On Thursday we were working together for most of the day, and he would not stop bringing it up with me. I kept telling him that I preferred not to talk about things like that when customers were around, and that I would talk to him about it later. About ten minutes before his shift ended, he blew up, and in front of a half-dozen customers started shouting, “You f@&%ing jerk! You just want to keep all the big commissions for yourself! I should kick your a@@! Who f@&%ing puts up with this bull$#!t!” Then he threw a box of cds at me, which smashed into the front desk and scattered all over the place. The customers were freaked out. I was furious.

Obviously, I fired him on the spot. The next day, he sent me an email claiming he had been talking to some lawyers (aka doing Google searches), and that what I did was a violation of something called the NLRA. He claims that unless I write him a big check, he’s going to file a lawsuit with the National Labor Relations Board, and “knock your sorry a@$ out of business.”

What on earth is he talking about? There’s no union in my store – why is he talking about the “National Labor Relations Board?” Not to mention, the guy launched into a cuss-word laden tirade at me in front of a bunch of our customers. Surely I can fire him for that, can’t I? Answer→

Quirky Question #205, Pregnancy CA, Washington and Utah

Question:

We have employees in California, Washington and Utah where I understand there may be separate statutes protecting pregnancy disability leave and requiring up to sixteen (16) weeks of protected leave (as opposed to twelve (12) under FMLA).  We terminated an employee in California for not returning after her sixteen (16) week leave and she is threatening to sue.  Aren’t we on safe ground since we gave her the full amount (sixteen (16) weeks) of leave? Answer→

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