Curing Cat’s-Paw

By Bill Wright 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 […]

Federal Contractors Beware – Part 8

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 […]

Another Blow to Intern Test

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 […]

Bad Timing, but No Punitives

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 […]

EEOC Loses One, Wins One

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 […]

Drug Test Entitles Workers to Union Rep

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, […]