Employment Law:
New Sources of
Liability and
Opportunity in 2012
Chip Muller, Esq.
155 S. Main St.
Providence, RI 02903
401-256-5171
www.chipmuller.com
S
General Trends
S Employee protections broadening
S EEOC charges are up
S Risks to companies increasing
S Disability regulations broadened
S HR & outside counsel roles more demanding
“Associational
Retaliation”
Thompson v.
North American Stainless
S
Title VII Retaliation Protection
S Illegal to take action against anyone who:
S Opposes an act illegal under Title VII, etc., or
S Participates in a discrimination/harassment
reporting/investigation procedure.
S Less damaging action against employee suffices:
S “materially adverse” to a reasonable employee / applicant.
S Materially adverse action “well might have ‘dissuaded a
reasonable worker from making or supporting a charge of
discrimination.’”
The Thompsons-to-Be
Eric
U.S. Supreme Court
S Can Eric sue?
S Slippery slope
S Yes: “Zone of Interests” to
be protected by Title VII
S Hurting Eric was
employers way of hurting
Miriam
S Might well have dissuaded
Miriam from making
complaint.
Big Question
How broad is “zone of interest”?
S Firing a close family member will almost always qualify…
S Inflicting a milder reprisal on a mere acquaintance will
almost never do so…
S “beyond that we are reluctant to generalize.”
More Retaliation Claims
S 36,258 retaliation complaints filed during 2010
S 8% increase from 2008
S 61% increase from 2006
Action Items (#1)
S When signing off on actions which affect employee,
S Strong investigations
S Increase your breadth of perspective
S Note family relationship?
S Document non-discriminatory reasons for termination
S Supervisor training
Cat’s Paw Grows
Staub v.
Proctor Hospital
S
“Cat’s Paw”
USERRA
S Adverse employment action illegal if employee’s
S Membership in a uniformed service or
S Obligations to a uniformed service is a
S Motivating Factor in the employment decision.
38 U.S.C. sec. 4311
S Like Title VII
Private Staub
Pounce Under
Cover of Darkness
S Written warning.
S Required Staub to report to supervisors when not working
S Eight months later: supervisor reports to VP of HR: Staub
violated terms of warning
S VP of HR reviews file
S VP of HR fires Staub for ignoring warning
S Staub says direct supervisors’ write-ups all lies
Monkey Takes Off
Cat’s Paw:
Players
Cat’s Paw: Old Theory
S HR’s independent decision to take adverse action breaks
causal connection between supervisor’s bigotry and adverse
action
S when assessing independence of HR, courts look for
S Employee’s opportunity to address allegations in question
S HR’s awareness employee thinks underlying recommendation
is motivated by bias or retaliation.
Thompson v. Coca-Cola Co., 522 F.3d 168, 178 (1st Cir. 2008).
Cat’s Paw:
Old View
HR Investigation Can More
Easily Break Causal
Connection
Cat’s Paw: New Law
S
Supervisor’s biased report may
remain a causal link if:
S HR investigation takes biased
report into account without
determining that the adverse
action was entirely justified aside
from the supervisor's
recommendation.
S
If HR investigation relies on facts
provided by biased supervisor, the
employer will have effectively
delegated the factfinding portion of
the investigation to the biased
supervisor.
Staub Wins
S
Supervisors biased
S
Acted as agent of employer
S
HR VP based decision to terminate
in part on:
S Staub’s failure to follow
corrective action
S Supervisor was source of data
that Staub did not follow
corrective action
Action Items (#2)
S Thorough investigation based on best practices
S Seek raw data; ask for examples
S Account for bias
S Retrain decisionmakers
S Consider more independent investigators
S Document investigation and legitimate reasons for adverse
employment action
ADAAA
New EEOC Regulations
S
OLD PARADIGM
S Substantially Limits = “Severely restricts”
S Disabilities Which Used to Fall Short
S Diabetes
S MS
S Cerebral Palsy
S Asperger’s Syndrome
S
See, e.g., Ziehm v. RadioShack Corp., 2010 U.S. Dist. LEXIS 136782 (D. Me. May 22, 2010).
S Catch-22
Mandate to EEOC
S Refine regulations
S Make it easier for individuals with impairments to show that
they are
S substantially limited
S in one or more major life activities
ADA Regs: Why
Important
S Power of statute
S Enforcement of ADA Priority for EEOC
in 2011
S More Charges-- 25,000 in 2010 (up 30%)
New Paradigm
S “The primary object of attention in cases …should be
whether covered entities have:
S complied with obligations and
S whether discrimination has occurred,
S not whether the individual meets the definition of disability.
29 C.F.R. §1630.1(c)(4).
ADA Basics: “Disability”
S Physical or mental impairment that
S substantially limits
S one or more of the major life activities;
S A record of such an impairment;
S substantially limits
S one or more of the major life activities; or
S Being regarded as having . . . an impairment.
29 CFR 1630.2
ADA Basics: Liability
S Illegal to discriminate against individual
S Must make reasonable accommodation for qualified
employee
(1) “Impairment”
S Physical or mental impairment that
S substantially limits
S one or more of the major life activities;
S A record of such an impairment;
S substantially limits
S one or more of the major life activities; or
S Being regarded as having an impairment.
29 CFR 1630.2
“Impairment”
Physical
S Any physiological disorder or condition,
S cosmetic disfigurement, or anatomical loss
S affecting one or more body systems,
S neurological, musculoskeletal, special sense organs, respiratory,
speech, cardiovascular, reproductive, digestive, genitourinary,
immune, circulatory, hemic, lymphatic, skin, and endocrine . . .
.
“Impairment”
Mental
S Any mental or psychological disorder such as:
S intellectual disability (formerly termed “mental retardation”),
S organic brain syndrome,
S emotional or mental illness, and
S specific learning disabilities.
29 C.F.R. §1630.2(h)
(2) “Major Life Activity”
S Physical or mental impairment that
S substantially limits
S one or more of the major life activities;
S A record of such an impairment;
S substantially limits
S one or more of the major life activities; or
S Being regarded as having an impairment.
29 CFR 1630.2
“Major Life Activity”
S List Expanded: Caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, sitting, reaching, lifting,
bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, interacting with others, and working; and
S The operation of an organ or major bodily function, including
functions of the immune system, special sense organs and skin;
normal cell growth; and digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory, cardiovascular, endocrine,
hemic, lymphatic, musculoskeletal, and reproductive functions.
S “Major” shall not be interpreted strictly
(3) “Substantially limits”
S Physical or mental impairment that
S substantially limits
S one or more of the major life activities;
S A record of such an impairment;
S substantially limits
S one or more of the major life activities; or
S Being regarded as having an impairment.
29 CFR 1630.2
Rules of
Construction
“Substantially Limits”
Rules of Interpretation
S Episodic/in remission is disability if substantially limiting
when active
S Permanence irrelevant for actual disability or record of
disability prongs.
S E.g., Back
S Temporary disability can be a disability if substantially limiting
S Don’t consider mitigating measures
29 C.F.R. §1630.2(j)(1)
Mitigating Measures
S
Not considered when determining disability (new in regulations):
S
Psychotherapy,
S
Behavioral therapy
S
Physical therapy
S
Medication, medical supplies, equipment, or appliances,
S
Low-vision devices (devices that magnify, enhance, or augment a visual image),
S
Prosthetics including limbs and devices,
S
Hearing aid(s), mobility devices, oxygen therapy equipment/supplies;
S
Assistive technology;
S
Reasonable accommodations or "auxiliary aids or services" (see 42 U.S.C. 12103(1));
S
Learned behavioral or adaptive neurological modifications
S
NOT “ordinary” eyeglasses/contact lenses
Employer Defenses
S Employee not qualified
S Education, experience, skill, etc.
S Cannot perform essential job functions with or without
accommodation
S Undue Hardship
S Direct Threat
“Regarded As” Disabled
S Employer takes adverse employment action against employee
because of a real or perceived disability
S Perceived disability does NOT need to substantially limit major
life activity!
S “[I]ndividual is not subject to any functional test.”
29 CFR 1630 APPX
S E.g., fire someone because they have cancer or have skin grafts
S Special Defense: transitory (6 mos. or less) AND minor
S Note: this defense does NOT apply to other prongs
Unresolved by Regs
S What accommodations are “reasonable” in specific
situations?
Not a disability
S Pregnancy
S But…
S Illegal Drug Use
Action Items (#3)
S Written job descriptions with essential job functions more
important
S Accurate
S Complete
S Daily, regular attendance
S Working in office
S Concentration
S Critical thinking
S Social Interaction
Action Items, Cont’
S More “accommodating” attitude
S Genuine Interactive Process
S Document
S Train Managers
S If request is easy, accommodate
S Requests for Info from Doctors:
S Can employee perform essential job functions?
S Job-related and consistent with business necessity
ADA Resources
S Regulations
S Fact Sheet on the EEOC‘s Final Regulations
S Questions and Answers on the Final Rule
www.eeoc.gov
Working
Day & Night
Smart Phones &
FLSA
S
FLSA Liability
S Increasing year by year.
S Up 20% from 2008 to 2009, up from 2009 to 2010
S Back pay, liquidated damages, attorneys fees, and costs
S One estimate: about half of all corps misclassify
Minimum Wage & Overtime
S All employees except exempt
S For all work
S Including work before or after work “integral and indispensible
to the job.”
More and
More
Common
Scenario
Allen v. City of Chicago
S Sergeant
S Unpaid PDA use
S Dept. issued PDAs and required officers to respond around
the clock.
S City’s Motion to Dismiss denied
Defenses
S Worker Exempt
S De minimis
S
<10 minutes
Action Items (#4)
S Supervisor training
S Handbook revision
S Policies and practices must adapt
S Way for employees to report time
S Consider requiring employees to seek approval in writing
S Ban
New Protection for
Whistleblowers
Kasten v. Saint-Gobain
Performance Plastics Corp.
S
Fair Labor Standards Act
S Minimum Wage
S Overtime requirement
S Forbids firing or discriminating against employee “because
such employee has filed any complaint” with his/her
employer alleging a violation of the FLSA, or
S Has instituted or caused to be instituted any proceeding
related to the FLSA.
29 U.S.C. sec. 201
Timeclocks
Kasten’s
Complaint
US Supreme Court
S
Oral complaint= “filed”?
S
Definitions and usage not conclusive.
S
Turns on Purpose of Act:
S
S
Help those who “toil in factory.” FDR
S
“Coal miners, factory workers, line
workers-they don't write memos . . .
lawyers write memos.”
S
Act needs flexibility
S
Dept. Labor interpretation
Kasten wins
Action Items
S Educate supervisors
S New law
S Document
S Investigate
S Ensure that Handbook and Policies provide for method of complaints
about illegality, harassment, discrimination, unsafe conditions, etc.
S Prior to Adverse Employment Action: ask about employee’s
workplace complaints
S
Consider “classic scenario”
Open Questions
S
Gripes?
S
What if complaint not made via formal corporate channels?
S
How strong does evidence of oral complaint need to be made?
S
“must be sufficiently clear and detailed for a reasonable employer to
understand it, in light of both content and context”
S
What if employee is wrong about law and violations?
S
Does Kasten apply to other Whistleblowing statutes?
S
S
OSHA, sec. 11
RI Whisteblower’s Protection Act
CONTACT AN
EMPLOYMENT ATTORNEY