NLRB Employee will Spend 52 Months in Prison for Embezzling Back Pay Awards

A National Labor Relations Board compliance office was sentenced to serve 52 months in prison for stealing more than $400,000 from back pay funds intended for employees involved in unfair labor practice cases.

As a compliance officer, Hector Martinez was responsible for disbursing back pay to employees in NLRB cases, but the government alleged he created fictitious employee names in real cases and diverted payments to at least eight personal bank accounts he opened to further his theft. The payments represented back pay amounts that nine different employers had turned over to the NLRB in unfair labor practice cases.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

NLRB Changes Backpay Formula for Terminated Employees: Harmful to Employers

The NLRB voted 3-1 to revise its backpay formula for compensating workers found to have been unlawfully terminated, ordering an employer to pay for a former employee’s interim-employment and search-for-work expenses.

The Board had previously treated those types of expenses as offsets that reduced the amount of interim earnings that were then subtracted from gross back pay. This ruling, though, establishes that employees will now be compensated for such expenses, even when interim earnings are nonexistent or less than those expenses.

“The Board has been awarding search-for-work and interim employment expenses for 80 years,” the majority wrote. “The changes we make today only affect how the board calculates search-for-work and interim employment expenses, not whether these expenses are a permissible remedy.”

But in his dissent, Member Miscimarra wrote, “I do not discount the fact that parties and claimants experience substantial, often oppressive non-monetary consequences as the result of unfair labor practices. “Nonetheless, the NLRA only permits the board to award relief that is remedial.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Wants Former Employers to Pay for Job Search Expenses of Former Employees

National Labor Relations Board General Counsel Richard Griffin instructed NLRB Regional Offices to request employees be reimbursed for job search costs and work-related expenses they incur due to violations of the National Labor Relations Act. This order modified a 2011 order by then acting-general counsel Lafe Solomon.

Solomon wrote that the Board’s practice was to consider such amounts payable only to the extent they did not exceed the “interim earning” an employee managed to earn after an unlawful discharge or loss of employment. Under that practice, if an individual did not have interim earnings, the NLRB would not seek payment for expenses on behalf of the individual. Solomon instructed Regional Offices to calculate “search-for-work and work-related expenses” for such employees and to charge them against the offending company “regardless of whether the discriminate received interim earnings during the period.”

So assuming a grocery store in Ohio unlawfully discharged an employee, and that employee applied for a job at a grocery store in Hawaii and traveled to Hawaii for an interview, would the Ohio grocery store be required to reimburse the employee for his Hawaiian vacation job interview? And, would it matter if the applicant vacationer turned down a job offer? Or, if he purposefully bombed the interview so he wouldn’t receive a job offer? This rule, like so many from the Board recently, leave us with so many unanswered questions.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

NLRB Requires Employers to Pay Employee Taxes on Back Pay

The Board’s determination to force employers to pay the taxes on back pay employees received as the result of filing an unfair labor practice charge with the NLRB was invalidated by the Noel Canning decision. But a few months later, the Board re-ruled in the same way on the same case. Employers must pay Social Security and income taxes on lump sum back pay awards. In theory, if an employee usually makes $25,000 per year and is owed $50,000 in back pay, then that lump sum payment will put the employee in a higher tax bracket (having received $75K that year) than it otherwise would have been had if it made $25K for three consecutive years. The Board believes having the employee who made more money pay more taxes is not fair, so it unilaterally sticks the employer with the bill.

NLRB Forces CNN to Rehire and Pay Back Wages to 100 Union Workers Who were Terminated 10 Years Ago

In 2003, CNN terminated its relationship with its unionized subcontractor Team Video Services, LLC (TVS). TVS  provided CNN with camera crews and other technicians. CNN then created new, non-union positions to replace the TVS workers and hired about 2/3 of TVS’s employees for those positions. The NLRB did not believe CNN’s argument that it terminated TVS’s contract to create a nimble staff suited to new digital technology, mostly because TVS had worked through technological changes before and CNN praised TVS’s workers when it announced the reorganization.

Of great importance is that the NLRB also ruled CNN and TVS were joint employers because CNN had the right to require changes in TVS staffing levels and imposed limits on whom TVS could hire. It also found that CNN producers had often directed cameramen without checking with TVS. According to the Board, “logic would dictate finding of joint-employer status in circumstances where a contactor deems its operations so essential that they cannot be entrusted to the supervisory oversight of its subcontractor’s officials.”

Employees Reinstated Despite Post-Discharge Conduct Unless Serving Time in Prison

Employee Neel began working at a call center in early 2011 that solicited donations for non-profits. He was instrumental in organizing workers into a union, was elected union steward, and became a member on the union negotiating committee. Neel was fired in 2012 for breaking multiple protocols while on the phone. Yet, the Board ruled his termination was in retaliation for him engaging in protected concerted activity. The Board ordered Neel reinstated, but the Company argued that Neel’s post-discharge conduct negated its obligation to reinstate him.

Specifically, when interviewed by the local newspaper, he called his former employer a Ponzi scheme, said he no longer believed in the non-profit’s cause, and concealed his criminal record prior to employment with the Company. Neel testified before the Board that he was angry when he lashed out at the Company in the interview, he believes in its mission, and he doesn’t really think it’s a Ponzi scheme. And, he would like his job back.

Citing Hawaii Tribune-Herald, the Board said Neel was entitled to a reinstatement offer unless the employer could prove he engaged in post-discharge conduct that made him unfit for further service or showed he would be a threat to the employer’s operations. Under this standard, the Board has characterized the denial of reinstatement as warranted only in extraordinary situations such as “have been found to exist where the [employee] threatened to kill someone…intentionally struck a supervisor with an automobile…and threatened to report a probation violation in order to influence a witness’s testimony during a Board Hearing.” Following those examples, apparently reinstatement is warranted unless the employee is currently in prison.

Employee Fired for Profane Rant Against Owner Reinstated with Back Pay

Shortly after being hired, Nick Aguirre began complaining to his co-workers and manager about the employer’s compensation and break policies. Tony Plaza, the owner of the company, called Aguirre into his office, scolded him for these conversations, and repeatedly reminded Aguirre he could quit if he did not like working at the company. Aguirre lost his temper and in a raised voice started berating Plaza, calling him a “f-ing mother f-er,” “f-ing crook,” and an “a-hole.” Aguirre then told Plaza that if he was fired, Plaza would regret it. Plaza fired Aguirre.

An Administrative Labor Judge determined Plaza violated the NLRA by inviting Aguirre to quit, but lawfully fired him for “obscene and personally denigrating terms accompanied by menacing conduct and language.” As you can imagine, the NLRB overturned the ALJ.

Under Atlantic Steel Co., in determining whether an employee who engaged in otherwise protected activity lost the protection of the act, the Board considers (1) the place where the discussion led to an outburst, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s illegal conduct. Here, the NLRB decided that the three factors weighing in favor of protection from the National Labor Relations Act outweighed the one factor weighing against protection.