Curing Cat’s-Paw 2015-09-28T11:08:34-06:00

Posted on September 28, 2015

In a Title VII retaliation claim, a plaintiff has to prove protected conduct was the “but-for” cause of the materially adverse action. Can a plaintiff prove “but-for” causation relying on the supposed retaliatory animus of someone other than the decision maker? Yes, but not if the decision-maker acts independently of the so-called “cat’s paw.”

In Thomas v. Berry Plastics Corp., No. 14-3200 (10th Cir. Sept. 25, 2015), plaintiff was subject to 13 disciplinary actions over 7 years and was on a last chance agreement. After the shift-lead blamed plaintiff for a quality control issue, the manager fired plaintiff. Plaintiff appealed internally, and two independent managers affirmed the discharge. In court, plaintiff tried to show that the shift-lead was biased because he had not included exculpatory information in his report. The court ruled the evidence failed to show bias, but also ruled that the employer’s internal review of the discharge decision was independent of the shift-lead’s information in that it provided the plaintiff an opportunity to tell his side of the story.

Just hearing the discharged employee out may be enough to show independence. Also, apparently, employers may cure any lack of independence with a review process that occurs after the decision. It is never too late to show independence.

Federal Contractors Beware – Part 8 2015-09-23T14:15:08-06:00

Posted on September 23, 2015

By Lori Wright Keffer

On September 7, 2015, President Obama issued an executive order that will require federal contractors and subcontractors to provide their employees with up to seven or more paid sick leave days a year. The Order gives requirements for accrual, carryover, and payout of the leave, including that: (i) employees must accrue at least 1 hour of paid sick leave for every 30 hours worked (up to at least 56 accrued hours); (ii) unused paid sick leave hours carry over to the next year; but (iii) employers don’t have to pay employees for unused accrued sick leave upon termination. Employees may use the leave to care for themselves, a family member, or even a loved one, or for absences resulting from stalking, sexual assault, or domestic violence. For additional information regarding the specific requirements and conditions of the Order, see https://www.whitehouse.gov/the-press-office/2015/09/08/executive-order-establishing-paid-sick-leave-federal-contractors.

Stay tuned for the details. The Secretary of Labor will issue regulations by September 30, 2016 and the Order is to apply to federal contracts entered into after January 1, 2017. Non-federal contractors should also beware, as this looks like another example of the Administration laying the groundwork to expand federal contractor requirements to all employers over time.

See our other previous posts warning Federal Contractors:

Federal Contractors Beware – Part 1
Federal Contractors Beware – Part 2
Federal Contractors Beware – Part 3
Federal Contractors Beware – Part 4
Federal Contractors Beware – Part 5
Federal Contractors Beware – Part 6
Federal Contractors Beware – Part 7

Another Blow to Intern Test 2015-09-16T11:29:59-06:00

Posted on September 16, 2015

By Bryan Stillwagon

The DOL’s six-factor test for determining “employee” status for interns or trainees under the FLSA took another blow last Friday, this time from the Eleventh Circuit in Schumann v. Collier Anesthesia, PA (11th Cir. Sept. 11, 2015). The Court, following the lead of the Second Circuit, tossed the DOL’s six-factor test, finding it too outdated for today’s economy. Plaintiffs, a group of RNs studying to become nurse anesthetists, were required (by the college and by state law) to participate in a clinical experience before receiving their master’s degree and license. Plaintiffs filed suit alleging that they were defendant’s “employees” and were entitled to wages and overtime for their clinical efforts. The court held that whether defendant derived an advantage from the interns—a key factor under the DOL test—cannot, without more, render the interns “employees” under the FLSA. Courts must evaluate the benefits to the intern while ensuring programs do not take unfair advantage of or abuse interns.

The court did not decide whether the Schumann interns were employees, but instead remanded the case to the district court for analysis under the Second Circuit’s non-exhaustive considerations from Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376, 384 (2nd Cir. 2015), which include the extent to which: (1) the intern and the employer clearly understand that there is no expectation of compensation; (2) the internship provides training that would be similar to that which would be given in an educational environment; (3) the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit; (4) the internship accommodates the intern’s academic commitments by corresponding to the academic calendar; the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning; (5) the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern; and, (6) the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

One can only hope that this development is a sign of things to come and signals the eventual demise of the DOL’s six-factor test.

Bad Timing, but No Punitives 2015-09-14T08:00:55-06:00

Posted on September 14, 2015

By Andy Volin

Firing someone right after they complain of discrimination can result in a retaliation claim, even if the employer thinks it has a good reason unrelated to the complaint. The Tenth Circuit just upheld a jury verdict in this situation, despite the employer’s assertion that it discharged the plaintiff for submitting fake letters from prior employers. Zisumbo v. Ogden Regional Medical Center (10th Cir. Sept. 4, 2015). The problem with the employer’s case was that it had the fake letters for months and only investigated after the employee complained of discrimination.

The outcome could have been worse for the employer, however, because the court refused to instruct the jury on punitive damages. The Tenth Circuit agreed that the employer had provided evidence of its “good faith efforts” to comply with the law, such as having appropriate policies, training, and enforcement of anti-discrimination policies. This was sufficient under previous Supreme Court cases. See Kolstad v. American Dental Assn., 527 U.S. 526 (1999). The fact that both management and the HR dept. apparently engaged in retaliatory conduct was not enough to defeat this defense.

EEOC Loses One, Wins One 2015-09-10T08:00:47-06:00

Posted on September 10, 2015

By Brooke Colaizzi

The EEOC had a roller coaster week with respect to its aggressive challenges to employers’ background check practices.

On September 3, a federal district court in Maryland slapped the EEOC with an attorney’s fees judgment just shy of $1 million because the EEOC continued to pursue its attack against employer Freeman’s background check practice even after the Court struck the EEOC’s statistical expert for “inexplicably shoddy work.” Without reliable statistical evidence of disparate impact, the EEOC could not make out a prima facie case of discrimination and should have known that its case going forward was groundless. Quoting Kenny Rogers’ “The Gambler” and comparing the case to a poker game, the Court called Freeman’s case as a “royal flush” and chastised the EEOC for “playing a hand it could not win.”

The EEOC fared better in challenging BMW’s background check practice. On September 8, the EEOC and BMW requested the federal district court in South Carolina to approve a consent decree that, among other things, established new criminal background check guidelines for BMW’s South Carolina facility. The guidelines include detailed procedures informing applicants in writing of the criminal history under consideration and giving applicants 21 days after notice to initiate communication about their criminal history and job qualifications. BMW also will pay $1.6 million in monetary relief to fifty-six claimants denied employment with BMW.

Background check policies remain an EEOC target; I do not expect the adverse attorney’s fee award to dampen the EEOC’s enthusiasm for these challenges.

EEOC v. Freeman, No. RWT 09cv2573, 2015 BL 288334 (D. Md. Sept. 3, 2015).
EEOC v. BMW Manuf. Co, LLC, No. 7:13-CV-01583-HMH (D.S.C. Sept. 8, 2015).

Drug Test Entitles Workers to Union Rep 2015-09-09T11:56:40-06:00

Posted on September 9, 2015

By Andy Volin

The NLRB says sending a worker for a drug test is the same as disciplinary action and the worker gets to be accompanied by a Union representative. Manhattan Beer Distribs. LLC, 362 N.L.R.B. No. 192 (August 27, 2015). In this case, a delivery worker had an workplace accident and, the next day, came to work with glassy, bloodshot eye and “reek[ing] of the smell of marijuana.” Not surprisingly, the boss demanded that he take a drug test. The worker refused because he could not locate a union steward to accompany him. The company fired him for refusing to take the test.

The NLRB ruled that the worker had the right to union representation during the test, and that firing him for refusing to take the test in those circumstances violated his rights to union representation. In doing so, the NLRB ruled that the drug test should be considered the equivalent of a disciplinary investigation, creating the right to representation. And while the worker could not demand an indefinite delay to the test, insisting on an immediate test violated his rights. Therefore, his termination for refusing to take the test also violated his rights under the NLRA.

Employers will have to update their drug testing procedures and account for this additional delaying tactic.

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