870 F.3d 82
2d Cir.2017Background
- LIAAC, a non‑union HIV/AIDS service provider, required employees to sign a Confidentiality Statement restricting disclosure of HIPAA/HIV information and broader "non‑public" information including salaries and communications with media.
- Marcus Acosta, a prevention specialist, had prior performance issues but supervisors later acknowledged improvement and planned future assignments for him.
- LIAAC presented the Confidentiality Statement to Acosta on March 24, 2015 and told him to sign it "or get fired." He signed but wrote "under duress;" management then told him he had "terminated" himself and he left.
- Acosta filed an NLRB charge alleging the confidentiality rule unlawfully restricted discussion of wages/terms and that his discharge violated Section 8(a)(1) of the NLRA.
- The ALJ found the confidentiality provision facially invalid as to employee discussion of wages and that Acosta was discharged for refusing to sign; the NLRB affirmed and ordered remedies including reinstatement and revision of the policy.
- The Second Circuit reviewed for substantial evidence and legal error and affirmed the NLRB, holding termination for refusing to sign an unlawful confidentiality agreement violates Section 8(a)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Acosta was terminated for refusing to sign the Confidentiality Statement | Acosta: Nicoletti told him to sign or be fired; he was discharged for refusal | LIAAC: Termination was for poor job performance, not refusal to sign | Held: Substantial evidence supports that he was terminated for refusing to sign |
| Whether termination for refusal to sign an unlawful confidentiality agreement violates Section 8(a)(1) | Acosta/NLRB: Employer may not discipline or discharge for refusing to comply with an overbroad/unlawful rule even absent concerted activity | LIAAC: Protection requires concerted activity; an individual can be required to comply absent employee organization | Held: Violation of Section 8(a)(1) does not require concerted activity; firing for refusing to sign an unlawful document is unlawful |
Key Cases Cited
- Cibao Meat Prods., Inc. v. NLRB, 547 F.3d 336 (2d Cir. 2008) (standard of review for NLRB findings and legal conclusions)
- NLRB v. G & T Terminal Packaging Co., Inc., 246 F.3d 103 (2d Cir. 2001) (definition of substantial evidence review of NLRB factfinding)
- NLRB v. Air Contact Transp., Inc., 403 F.3d 206 (4th Cir. 2005) (employer may not discharge employee for refusing to comply with a policy that deters protected activity)
- NLRB v. Vanguard Tours, Inc., 981 F.2d 62 (2d Cir. 1992) (unchallenged unlawful rules can have a chilling effect on protected activity)