Two Lawsuits Hope to Put the Brakes on Overtime Rule Changes

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With a December 1 deadline looming, millions of employers across the country are scrambling to implement new compensation and classification practices in response to the U.S. Department of Labor’s (DOL) new overtime rule, announced in May. This past Tuesday, a duo of federal lawsuits was filed in Texas as a response to strong objections from employers. The first suit is brought by a coalition of 21 states, and the second is brought by a coalition of business groups led by the U.S. Chamber of Commerce. Continue reading this entry

Have a Management Rights Clause? It May Not Save You from Bargaining with the Union

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Many union employers insist on strong management clauses in their labor agreements. Such clauses contain language reserving for the employer the right to adopt new rules and regulations.  A reasonable employer may assume that this language gives the company the right to adopt rules and regulations without first bargaining with its union. A recent decision from the National Labor Relations Board reflects just how differently the Board views this issue than the “reasonable employer,” and provides several lessons learned for employers moving forward. Continue reading this entry

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