EEOC Issues New Retaliation Guidance

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For the first time since 1998, the Equal Employment Opportunity Commission (EEOC) has issued new enforcement guidance on retaliation. Retaliation claims have been a growth industry over the last 18 years. Back in 1998 retaliation claims constituted 24 percent of all EEOC claims, behind both race and sex charges. Since then, however, retaliation has become the most common type of claim filed with the EEOC, leapfrogging to 45 percent of all EEOC charges filed in 2015. Continue reading this entry

Watch Out for the Cat’s Paw - Employers May Be Accountable for Low-Level Employee Actions

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In the world of employment law, there is something called the “Cat’s Paw” theory of liability. The name comes from a fable dating back to the 17th century in which a clever monkey persuades a naïve cat to pull roasting chestnuts from a fire for the pair to eat. However, as the cat removes the chestnuts, the monkey eats the whole treat and leaves the cat with a burned paw and no chestnuts to show for its trouble.

What does this have to do with employment law? In discrimination or retaliation cases, a plaintiff has to prove that the employer intended to discriminate and/or retaliate against him or her. Traditionally, such discriminatory intent must come from management employees who actually made the employment decision at issue.

However, under the Cat’s Paw theory the company can be held responsible for the supervisor’s bad intent, even where that person did not directly make any decisions. When a court applies this theory, if a supervisor or management employee harbors some type of discriminatory animus against the employee and influences the decision, even if he does not actually make the decision, that influence may be sufficient to establish liability. As the theory goes, the company is the cat, an unwitting part in the monkey’s plot, and the supervisor is the monkey. Continue reading this entry

Don’t Let Zika Bug Your Employees

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If you are reading this from one of the 3,141 counties in the continental United States that has not yet been affected by the Zika virus, do not turn away. There is valuable information here for employers, even if you do not have an office in Miami or are not planning a vacation in Puerto Rico. Before it is too late, employers should be aware of the legal risks and establish a plan to protect employees and your company. Continue reading this entry

ABA Seeks to Combat Discrimination, But Clients May Hold the Keys to Progress

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We normally devote our small corner of the internet to updating you on the latest developments with the goal of helping employers do the right thing, most often from a legal compliance standpoint, but occasionally from a broader social perspective. In short, we are here to help you.

From time to time, we look to our clients when determining how to do the right thing as well. For the business of the practice of law is nevertheless a business, and our profession faces the same social challenges all businesses do. Yet we have an additional wrinkle – ethical obligations to advocate for our clients. A tension brews in this space, and if it ever bubbles up, we as attorneys may need you to point us in the right direction. Continue reading this entry

What Past Practice?? NLRB Overhauls Back Pay Formula

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The National Labor Relations Board (NLRB) has done it again.

Over the last few years, the NLRB has provided no shortage of topics for us to discuss, because it has made no secret of its aggressive agenda to expand employee protections under the National Labor Relations Act (NLRA), making rules and issuing decisions in furtherance of what seems like a thinly veiled agenda to benefit unions in their organizing efforts. Some of these actions have included upsetting decades of consistent precedent in ways that clearly favor unions. This time, the NLRB has departed from practices it has followed since the passage of the NLRA way back in 1935. Continue reading this entry