Did the NLRB do more harm than good by permitting teaching and research assistants to organize?

Last week, in Trustees of Columbia University [pdf], the National Labor Relations Board upended decades of precedent by holding that federal labor law covers graduate and undergraduate teaching assistants, and graduate research assistants. This case has received wide spread national coverage (such as here and here). It is academically and politically interesting, and worth your time to read even if your business doesn’t involve academia. Moreover, the Board’s willingness to so easily depart from such well established precedent should be troubling to all employers.

The aspect of the decision I want to focus on in Member Miscimarra’s dissent, specifically his argument that because of the NLRB’s recent super-expansion of the doctrine of protected concerted activity, this decision will harm the very students it intends to protect. 

What employers can learn from EEOC's new Enforcement Guidance on Retaliation

Yesterday, the EEOC published its final Enforcement Guidance on Retaliation and Related Issues. It’s the agency’s first formal guidance on this issue since 1998, and was long overdue. After all, according to EEOC Chair Jenny R. Yang, “Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination.” She adds, “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.”

An anniversary love story

Thirteen years ago today I married my best friend. I’m happy to report that the thunderstorms that rocked Cleveland on August 29, 2003, were not of the foreshadowing kind. It hasn’t been perfect. No marriage is. But every day is better because I get to experience it holding Colleen’s hand. And that makes us very, very lucky.

So, I thought I’d re-run a post from four years ago today. Enjoy.

WIRTW #427 (the “treat me like your mother” edition)

Someday I am going to convert this legal blog into a full-time dad/music blog. Until then, you get my semi-regular kids/musical posts. Like today’s.

The lot was definitely rocked today for School of Rock Strongsville’s fall show preview. This was my personal fav from Norah’s Jack White set - Treat Me Like Your Mother by The Dead Weather. Full shows on Sept. 17 and 25 @brotherslounge. @schoolofrockcle #sorcle @thirdmanrecordsofficial @thirdmanrecordscasscorridor #jackwhite #thewhitestripes #whitestripes #thedeadweather @thekills @amosshart

A video posted by Jon Hyman (@jonhyman) on Aug 21, 2016 at 6:07pm PDT

Here’s what I read this week:

OSHA's new Whistleblower Investigations Manual creates a huge burden for employers

Image via Lifehack.org
http://goo.gl/sn/VO1H

We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does. In fact, in addition to guarding our nations’ workers from workplace hazards, OSHA also enforces the anti-retaliation provisions of a veritable alphabet soup of federal statutes, such as the Sarbanes-Oxley Act, the Affordable Care Act, and the Clean Air Act, and the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century (really, that’s a thing).

For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employers’ anti-retaliation compliance a whole lot more difficult.

A wage/hour primer for employers with tipped employees

Employment Law 360 is reporting that a waitress is suing Walt Disney World for improperly taking a “tip credit” and paying her less than the minimum wage even though she spent significant time performing non-tipped work.

That story got me thinking that in the nine-plus years of this blog, I’ve never discussed how the FLSA impacts tipped employees. If you employ tipped workers, today is your lucky day.

Did the 7th Circuit finally kill McDonnell Douglas?

If you are an employment lawyer, the words “McDonnell Douglas” will bring a sentimental tear to your eye.

For the unfamiliar, the McDonnell Douglas is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this minimal showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination.

It has existed for the past 43 years, until (maybe) last week.