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

Accessing an Employee’s Social Media Account? A Patchwork of State Laws


The water cooler, it seems, is a thing of the past. Or at least the actual physical water cooler is. These days, many of the office conversations take place online. Employees air their grievances, connect with each other, and catch up on each other’s lives through social media. As technology plays a bigger role in our lives and simple statements that were previously private now become public, employers have an increased interest in what their employees are doing and saying online. Are they disparaging the company? Are they harassing other employees? Are they divulging company secrets? While these are all valid questions that an employer may want answered, employers need to tread carefully when developing policies regarding their employees’ use of social media. As the technological landscape and employee behavior is changing, so too are the laws governing permissible employer actions in relation to social media. Continue reading this entry

Do You Need to Pay Minimum Wage or Overtime to Your Commission-Paid Employees?


Companies will sometimes take a chance on a new (or old) salesperson by allowing him/her to work on pure commission. This “eat what you kill” compensation system seemingly creates an incentive to sell with little risk to the company. But is there really little risk? There is a real and potentially expensive risk of violating the Fair Labor Standards Act (FLSA) and/or state wage hour law. Continue reading this entry