The NLRB is now basically creating unfair labor practices out of thin air

Image via forbes.com

Those that have been readers for awhile know of my dislike of the NLRB’s expansion of its doctrine of protected concerted activity (e.g., here and here).

The latest on the NLRB’s hit list: employee mis-classifications. The NLRB has concluded that an employer has committed an unfair labor practice and violated an employee’s section 7 rights by (mis)classifying its employees as independent contractors. Or so was the Board’s conclusion in its recently published General Counsel Advice Memorandum [pdf].

When it’s better to be lucky than good

Employers, sometimes it is better to be lucky than to be good. Case in point? Graves v. Dayton Gastroenterology [pdf], decided yesterday by the 6th Circuit.

Our employment discrimination laws are not a pretense

Last week, the 6th Circuit decided Richardson v. Wal-Mart Stores [pdf], a fairly run of the mill age discrimination lawsuit. The court decided that Richardson had failed to establish that Wal-Mart’s reason for firing her—a two-year history of disciplinary warnings—was pretext for age discrimination.

What caught my interest was not the decision itself, but instead the following statement made by the plaintiff’s attorney to Employment Law 360 about the decision:

The unfortunate reality is that anti-employment discrimination laws have largely become a pretense in the U.S. These laws remain on the books; but many courts rarely enforce them.

Forced retirement is an age discrimination no-no

Image credit: slate.com

The EEOC has sued a Colorado hospital for age discrimination. The key allegation? That it forced employees to resign because of their age. The lawsuit claims hospital managers made ageist comments, including that younger nurses could “dance around the older nurses” and that they preferred younger and “fresher” nurses.

According to Phoenix District EEOC Regional Attorney Mary Jo O’Neill, “Research shows that pervasive stereotypes about older workers still persist—for example, there are widespread stereotypes that older workers are less motivated, flexible, or trusting and that a younger workforce is preferable. These stereotypes are flatly untrue and must be recognized for what they are—prejudice and false assumptions.”

WIRTW #429 (the "top 10" edition)

Blame it on the Labor Day holiday and the resulting short work week, but the labor and employment news has been a bit scarce this week. So, instead of my usual categorical breakdown of the week’s best posts, I am listing them as a (sort of) top 10.

Here are the top ten labor and employment law posts from this past week (not written by me, and not really in any particular order):

Free Speech, Social Media, and Your Job

One of the biggest misconceptions that employees hold is that the First Amendment grants them free speech rights in a private workplace. Quite to the contrary, the First Amendment right to free speech grants private-sector employees zero constitutional rights or protections.

Today, I bring you a guest post by Ellen Gipko of HubShout, which takes a deep look at this important issue, with a special focus on online speech and social media.

Fox Settles Sexual Harassment Suit with Gretchen Carlson

What do you get when you add a high profile sexual harassment suit, a highly compensated employee, and a well known target?

$20 million.

That is the number that Gretchen Carlson is receiving in settlement of her sexual harassment lawsuit against her former boss, deposed Fox News chief Roger Ailes.