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Apparently this guy can’t be fired after calling his boss a mofo on Facebook

(BUSINESS NEWS) A man is protected from firing after he cusses out his boss on Facebook.

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frustrating

Don’t do that

Johnny Paycheck ‘s 1977 hit, “Take This Job and Shove It” encapsulated the thought of many a worker: the ability to tell one’s boss, in direct terms exactly what was thought of him, and what he could do with his job. That thought, however, typically isn’t a reality.

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Tell your boss to shove it, and you’re typically the one doing the shoving. Of all of your things. Into a little box. That you and the security guard carry downstairs on your way off of the property.

Hypothetically…

So what happens when you publicly curse your boss on social media, using rather profane language in describing them and their shortcomings as a leader? That’s automatic termination, right?

Not so fast.

In a recent case before the National Labor Relations Board, board members voted 2-1 to overturn the firing of Hernan Perez, who posted to his Facebook account that his boss “…is such a NASTY MOTHER F-ER don’t know how to talk to people!!!!!! F-k his mother and his entire f-ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”

Well, that certainly seems clear enough, and would typically warrant termination.

So what’s the difference here?

The rub

Mr. Perez was an employee of Pier Sixty in New York City and had been for 13 years. In 2011, the service employees of the company began a drive to organize as a union, a drive that company management was actively opposed to.

Two days prior to the vote, Perez’s boss mildly reprimanded him, albeit loudly in front of others, and Mr. Perez vented his frustrations to the world at large.

A month and a half later, after the union had formed, the company fired Perez after learning about the Facebook posting, stating that the comment was a violation of the company’s anti-harassment policy.

Both the NLRB and the United States Court of Appeals for the Second Circuit, to whom Pier Sixty had appealed after the 2-1 NLRB decision, found that Perez’s speech, although vulgar, was protected under the National Labor Relations Act as a part of union organizing activity.

“Even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the ‘subject matter’ of the message included workplace concerns – management’s allegedly disrespectful treatment of employees, and the upcoming union election,” Judge José Cabranes wrote, crafting an opinion for the triumvirate of judges.

Pier Sixty had done themselves no favors.

In attempting to curb support for the proposed union, they had created a ban on talking between employees. When Perez was told to be quiet by his boss, it wasn’t in an effort to maintain workplace decorum as much as it was to chill the organization of the union.
Additionally, the company had been incredibly lax about the tolerance of profanity in the workplace, with obscenities common among both frontline staff and company management alike, including the terms alluded to in Perez’s posting.

No employee had ever been fired for use of profanity at Pier Sixty, and averaged less than one warning for profanity per year to employees for the six years prior to Perez’s firing.

“Under the circumstances presented here, it is striking that Perez – who had been a server at Pier Sixty for thirteen years – was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity,” said the judges in their ruling.

So, we can’t fire employees for cursing out their bosses now?

The answer is, as it is with so many things in life, a qualified maybe.

How to handle it

Although right to work states do not have to worry about union organization with the frequency that other states do, it is incumbent upon employers to know the law and how to address employees’ rights to organization should talk of a union begin. Ensure that your human resources department is trained in the tenets of the National Labor Relations Act, with at least annual reviews on changes in case law that apply to your field, and make certain that your legal counsel gives timely advice should talk of a union begin (or gives you a referral to labor counsel if it’s outside of their field).
Secondly, if you have a policy on appropriate workplace conduct, follow it.

A rule seldom or only selectively enforced is a nightmare waiting to happen at termination time.

Finally, if your workplace is profanity tolerant, you’ll have a harder time training your employees where the magical line is between okay and fired, so consider making your workplace standards of conduct consistent with professionalism.

Firing well

As with any termination, it should never be a surprise to the employee when it happens, whether it’s for lackluster performance over time or the one very big bad thing that they did. But you’ve got to be sure that you’ve protected yourself by ensuring that you’re really firing the employee for what you say you are, rather than using it as a pretense for other things altogether.

#FiringWithGrace

Roger is a Staff Writer at The American Genius and holds two Master's degrees, one in Education Leadership and another in Leadership Studies. In his spare time away from researching leadership retention and communication styles, he loves to watch baseball, especially the Red Sox!

Business News

Coca Cola drops 200 brands, most you’ve never heard of

(BUSINESS NEWS) Coca Cola hopes to revitalize their drink arsenal by rolling back some “underperforming” brands (that you might not have known they were still making.)

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Woman drinking Coca Cola against plain wall

2020 has forced a lot of businesses to return to their proverbial drawing boards, and the Coca Cola Company is no exception. Last week, Coca Cola announced in a corporate blog post that they are halting the production of 200 of their beverage brands.

In the words of Cath Coetzer, the head of global marketing for Coca Cola, the restructuring will “accelerate [Coke’s] transformation into a total beverage company”.

“We’re prioritizing bets that have scale potential across beverage categories, consumer need states and drinking occasions,” Coetzer added. “Because scale is the algorithm that truly drives growth.”

That’s… a surprising amount of technical beverage jargon, Cath.

Coca Cola is already the leading manufacturer of non-alcoholic drinks on the planet. It’s hard to imagine their scope becoming any more “total.” But this strategy shift comes as the consumer thirst for soda is drying up.

Soda consumption has steadily fallen over the last ten consecutive years, thanks to a swath of modern studies that link excess sugar intake with negative health outcomes like obesity, diabetes, and heart disease.

In light of this research, regional sales taxes on drinks with added sugar have been debated across the country, despite aggressive corporate lobbying against it. All this has meant that beverage companies have had no choice but to pivot hard.

Take Odwalla, a Coca Cola brand that touted its vitamin content and servings of produce, which was discontinued earlier this year. Despite being marketed as a health brand, Odwalla flavors contained whopping amounts of added sugar: Their popular “superfood” flavor quietly boasted 47 grams per bottle.

The brands affected by Coke’s recent soda cull also include TAB diet soda, ZICO coconut water, and Coca Cola Life, plus internationally marketed drink brands like Vegibeta of Japan and Kuat of Brazil.

Condensing their portfolio allows Coca Cola to prioritize their most profitable products and invest in more new beverage trendsetters that better fit the times, like sparkling water, coffee, or even cannabis-infused products.

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Business News

Uber and Lyft face the music as employee ruling is upheld

(BUSINESS NEWS) The battle for Uber and Lyft drivers’ status continues, and despite company protests, the official ruling has been upheld.

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Interior of Uber and Lyft rideshare looking out on palm trees

A gig economy has its pros and cons. For anyone who has ever been an independent contractor, done freelance work, or worked for companies like Uber, Lyft, and DoorDash, the pros are clear – you get to work when you want, where you want and how much you want. Flexibility and gigs go hand in hand.

And the cons? Well, those are a little more complex. Without a W2 linking you directly to the company, you as an independent contractor don’t receive the same rights and perks that your 9-5 employee friends might. For example, your employer is not required to provide a healthcare option for you. You are also not entitled to earned time off or minimum wage.

So which is better?

The gig economy conundrum has made its way all the way to an appellate court in California last week. The ruling was that Uber and Lyft must classify their drivers as employees.

Back in May, Attorney General Xavier Becerra and city attorneys from L.A., San Diego and San Francisco brought forth a lawsuit that argues Uber and Lyft gain an unfair, unlawful competitive advantage by not classifying their workers as W2s.

Uber and Lyft responded to the suit, stating that if they were to reclassify their drivers as employees, their companies would be irreparably harmed – though the judge in last week’s ruling negated that claim, stating that neither company would suffer any “grave or irreparable harm by being prohibited from violating the law” and also that the financial burden of converting workers to employees “do[es] not rise to the level of irreparable harm.” Essentially, the judge called their BS.

Additionally, according to the judge, there is nothing that would prevent Uber and Lyft from offering flexibility and independence to their drivers – and they have had plenty of time to transition their drivers from independent contractors to employees (the gig worker bill that spurred this lawsuit was decided in 2018). Seems fair to me!

However, there is an oppositional proposition on the ballot that muddies the waters. Proposition 22, if passed, is a measure that would keep rideshare drivers and delivery workers classified as independent contractors, meaning that those workers from Uber and Lyft would be exempt from the new state law that classifies them as W-2 employees. And you might be surprised to know how many of the app-based rideshare workers are in favor of Prop 22!

In a class-action lawsuit, Uber has been accused of encouraging drivers and delivery workers to support Prop 22 via the company’s driver-scheduling app. It appears, unfortunately, that Uber is manipulating its workforce by wrongly hanging their jobs over their heads.

On this matter, Gig Workers Rising stated: “If Uber and Lyft are successful in passing Prop. 22 and undo the will of the people, they will inspire countless other corporations to adapt their business models and misclassify workers in order to further enrich the wealthy few at the expense of their workforce.”

Ultimately, the fate of California Uber and Lyft driver’s in still in question. It’s unclear if the question we should be asking is, will Lyft drivers have proper healthcare through their jobs or will they have jobs at all. All of this is occurring at a time where millions are jobless and 158,000 individuals sought unemployment support this week due to COVID-19 layoffs.

Personally, I have little sympathy for tech-giants that rake in billions off the backs of the exploited working-class. If the CEO of Uber is an ostentatious billionaire, then his employees should have health insurance. Clear and simple.

The scariest part of the gig economy is that workers have become increasingly happy to work for a company that gives them little to no benefits. More companies are dissolving or combining positions so that they can further bypass their responsibilities to their employees. Let us not be fooled: The dispute over whether or not to make Uber and Lyft workers W2 employees does not affect the health of the companies themselves. What it will affect is how fat the bonuses will be the big guys at the top, and that’s exactly why the companies are so adverse to the ruling. They’d rather their workers suffer than lose a single dime.

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Business News

Bay Area co-living startup strands hundreds of renters at dire time

(BUSINESS NEWS) They’re blaming COVID for failing as a co-living space, but it looks like trouble was well established even before now.

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Person packed a bag and walking away from co-living space.

Over the last few years, “co-living” startups have become increasingly common in tech-rich cities like San Francisco. These companies lease large houses, then rent individual bedrooms for as much as $2,000 per month in hopes of attracting the young professionals who make up the tech industry. Many offer food, cleaning services, group activities, and hotel-quality accommodations to do so.

But the true value in co-living companies lies in their role as a third party: Smoothing over relations, providing hassle free income to homeowners and improved accountability to tenants… in theory, anyway. The reality has proved the opposite can just as easily be true.

In a September company email, Bay Area co-living startup HubHaus released a statement that claimed they were “unable to pay October rent” on their leased properties. Hubhaus also claimed to have “no funds available to pay any amounts that may be owed landlords, tenants, trade creditors, or contractors.”

This left hundreds of SF Bay Area renters scrambling to arrange shelter with little notice, with the start of a second major COVID-19 outbreak on the horizon.

HubHaus exhibited plenty of red flags leading up to this revelation. Employees complained of insufficient or late payment. The company stopped paying utilities during the spring, and they quietly discontinued cleaning services while tenants continued to pay for them.

Businesses like HubHaus charge prices that could rent a private home in most of the rest of the country, in exchange for a room in a house of 10 or more people. PodShare is a similar example: Another Bay Area-based co-living startup, whose offerings include “$1,200 bunk beds” in a shared, hostel-like environment.

As a former Bay Area resident, it’s hard not to be angry about these stories. But they have been the unfortunate reality since long before the pandemic. Many urbanites across the country cannot afford to opt out of a shared living situation, and these business models only exacerbate the race to the bottom of city living standards.

HubHaus capitalized on this situation and took advantage of their tenants, who were simply looking for an affordable place to live in a market where that’s increasingly hard to find.

They’ve tried to place the blame for their failure on COVID-19 — but all signs seem to indicate that they had it coming.

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