The Lessons (and Wisdom) of Rihanna


Everyone these days seems to think they are entitled to more money, from the United States Department of Labor (DOL) claiming that there really are no independent contractors to the thousands of United Automobile Workers (UAW) members who recently rejected a tentative agreement with Fiat Chrysler Automobiles because union membership claimed the agreement did not go far enough to raise wages. Continue reading this entry

How the NLRB Spent Its Summer — Could Be a Chilly Autumn


For those of us in the employment field attempting to recover from the languor of long summer days, it’s time to catch up and ask what the NLRB has been up to during the dog days.  The answer – a lot. And so we take this opportunity to recap what has been a busy time during which long-held positions have been cast aside and new, and apparently frightening (at least to management), principles have been established. Continue reading this entry

Cat’s Paw, Part II: “Termination Review” by Independent Decision Makers Can Break the Causal Chain


Last week, we wrote about the “Cat’s Paw” theory of liability —where a person is used unwittingly to accomplish another person’s discriminatory purpose in the workplace. A common example would be when a racist employee unfairly “frames” a black employee and a supervisor then disciplines the black employee based on information provided by the racist employee, thereby discriminating on account of race without knowing that the discipline ultimately arises from an unlawful racial animus. Under a cat’s-paw theory of recovery (also known as “subordinate bias” or “rubber stamp” theory), an employer who acts without discriminatory intent can be liable for a subordinate’s discriminatory animus if the employer uncritically relies on the biased subordinate’s reports and recommendations in deciding to take adverse employment action. Continue reading this entry

A Quick Update on Speedy Election Rules (Hint: The Predictions Have Come True — Somewhat)


The National Labor Relation Board’s new election procedures became effective April 14, 2015. You may recall that the new rules were largely designed to shorten significantly the time between a union’s filing of a petition for election and the voting. Businesses cried foul, worried that a shorter time period between the petition filing and the election would unfairly minimize the employer’s opportunity to convince its workforce of the wisdom of its views that a union is not needed and would not be helpful. Some called these the “speedy election rules,” and critics called them the “ambush election rules.” Continue reading this entry

“Cat’s Paw” – Or Perhaps “Tiger’s Paw” Theory Now


For those interested in the origin, the term “cat’s paw” derives from a fable of a monkey who employs flattery to convince a cat to pull chestnuts out of a fire. Today the term commonly refers to a person used unwittingly or unwillingly by another to accomplish the other’s own purpose. In the employment discrimination context, an employer can be liable under a cat’s paw theory if an employee is terminated, suspended, etc. because of the discriminatory bias of another employee even if the manager/supervisor who made the disciplinary decision had no idea about the other employee’s bias. Continue reading this entry