In between several flights, layovers, mediation, and trial, I spent most of the week on the road and therefore was busier than normal. Unfortunately, I did not have much spare time to read through articles, but on a few delayed flights, I had some downtime and came across some great articles. In particular, I point readers to the gender discrimination suit filed against the New Orleans Saints after a cheerleader was allegedly terminated for posting in a one piece on Instagram, in violation of team rules that apply only to cheerleaders but not the players. This is one case in particular that readers might want to keep a close eye on.
As always, below are a couple articles that caught my eye this week.
NLRB Inspector General Urged to Investigate Board Member Pearce’s Conduct
As readers are likely aware, the National Labor Relations Board (‘NLRB’) recently vacated its decision in the Hy-Brand case...and in doing so, reverted back to the Browning-Ferris joint employer standard, much to the chagrin of Republicans and pro business groups. (Browning-Ferris created a much broader definition of joint employer, providing that either direct or indirect control is sufficient to establish joint employer liability. Once Republican pointed Board members gained a 3 - 2 majority of the NLRB they issued the Hy-Brand decision which reverted back to the original joint employer standard and in doing so, did away with the indirect control factor established in Browning-Ferris). The Hy-Brand decision was vacated over concerns that the NLRB reached an improper conclusion because one Board member, William Emanuel, had a conflict of interest that should have resulted in him refusing himself. However, a call has now been made for the NLRB Inspector General to investigate Board member Mark Pearce, who allegedly revealed the Board’s plan to vacate Hy-Brand before it became public knowledge. Some groups have called this an improper step for Pearce to have taken as his ‘leak’ revealed Board deliberations. No decision has yet been made on whether the Inspector General will launch an investigation, but I expect continued calls for him to do so, if he remains silent. Stay tuned.
Dealing With Harassment in the Workplace: A Perspective From Co-Workers
Rob Walker at The New York Times wrote an article recently in which he used two separate instances of harassment in the workplace as an opportunity to talk about what co-workers can do when they see harassment occurring (or are the victims of harassment by a fellow co-worker). While neither example that Walker uses is the definitive guide to dealing with harassment in the workplace, I think he identifies some useful things an employee can do when they see harassment happening (or are subject to it themselves).
An NFL Cheerleader’s Instagram Post Brings Discrimination Claims to the Forefront
FLSA wage and hour claims brought by NFL cheerleaders (and NBA cheerleaders) has long been a topic I have followed closely. However, as Ken Belson at The New York Times writes, a former New Orleans Saints cheerleader has alleged that the team discriminated against her because of her gender when they terminated her for after she posted a picture of herself in a one piece swimsuit on Instagram. This was allegedly in violation of team rules that among other things, prohibit cheerleaders from posting in bikinis, lingerie, or team gear on social media; prohibit cheerleaders from fraternizing with players; and require cheerleaders to block players on social media; among other restrictions. However, as the lawsuit against the team alleges, Saints players are not held to these same restrictions. Rather, only the cheerleaders (an all female group) are restricted from engaging in the range of prohibited conduct. As Belson writes, the Saints could be faced with an uphill battle to establish a valid reason for why the cheerleaders are so restricted in what they can do whereas the players themselves are not held to these same standards.
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