An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

employees or that would provide a threat of discharge of employment for failure to adhere to a particular course of political activity. 978 The National Labor Relations Board (NLRB) is the federal agency overseeing private sector unions and unionization efforts. It enforces federal law, the National Labor Relations Act (NLRA), which allows employees to organize unions and ensure that employers and unions follow federal law. The NLRB has issued a series of guidance regarding online speech protected under federal law. It determined that the following scenarios were “protected activity” where an employee could not be disciplined because the comments related to terms and conditions of the workplace:  An employee’s negative remarks about a supervisor who refused her request for union representation during an investigatory interview;  A Facebook discussion between five coworkers about their job performance and workload; and  An employee’s postings about employer tax withholding practices. On the other hand, the NLRB noted that speech involving individual gripes or “unprofessional and inappropriate tweets” that did not involve concerted activity was not protected by the NLRA. 979 The NLRB has recognized the absence of precedent in cases involving “employer rules prohibiting, or disciplining employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter,” and that this absence of clear guidelines may create inconsistent results. 980 Schools should therefore proceed with caution before disciplining

employees for online comments. LCW Practice Advisor

The NLRB generally will not assert jurisdiction over employees of a religious organization who are involved in effectuating the religious purpose of the organization, such as teachers in church-operated schools.

2. W HISTLEBLOWER S TATUTES

(a) California Labor Code Section 1102.5(b) Labor Code section 1102.5(b) prohibits employers from taking an adverse action against an employee because the employee disclosed information of a violation of state or federal law (or a local, state, or federal rule or regulation) to a government or law enforcement agency. 981 It is likewise illegal for employers to retaliate against an employee for disclosing wrongdoing by either the employer or fellow employees. 982 The statute does not apply to violations of local ordinances, policies, orders, or general personnel matters. 983 Violation of Labor Code Section 1102.5(b) constitutes a criminal offense under Labor Code section 1103.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 236

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