Labor & Employment Developments Blog

Today, March 22, 2011, the Supreme Court issued its decision in the Kasten v. Saint-Gobain Performance Plastics Corp. case.  The sole issued addressed by the Court was “whether ‘an oral complaint of a violation of the Fair Labor Standards Act’ is ‘protected under [the Act’s] anti-retaliation provision.’”  Given the recent spate of pro-employee decisions, it is hardly surprising that the Court answered the question in the affirmative.  The court began its analysis by noting that the FLSA protects employees who have “filed any complaint.”  The decision by Justice Breyer focuses on the meaning of those three words – filed any complaint.  While he concludes that the words in isolation are open to competing interpretations, consideration of the language in view of its purpose and context permits only one interpretation.  I will spare you the lengthy – some might say tortuous reasoning – and go straight to the holding: 

In my last post, I discussed the Sixth Circuit’s recent decision in Lewis v. Humboldt Acquisition Corp., which upheld the current Sixth Circuit standard that a plaintiff must show that his or her disability was the “sole reason” for the adverse employment action; sometimes referred to as the “solely” standard.  Of the ten circuits to consider the issue, eight apply a “motivating factor” (or “substantial cause”) test, under which a plaintiff must only show that a disability was a motivating factor of the adverse employment action. 

The Sixth Circuit issued a decision in Lewis v. Humboldt Acquisition Corp. on March 17, 2011 that is based on an interesting anomaly in the Sixth Circuit’s treatment of ADA claims.  Ms. Lewis was a registered nurse who began working at the Humboldt Manor Nursing Home in July 2004.  Sometime in September 2005, she developed a medical condition that “among other things, affected her lower extremities.”  As a result of the condition, Ms. Lewis sometimes used a wheelchair.  Humboldt Manor terminated Ms. Lewis’ employment in March 2006 because of an “outburst” that she had at the nurses station.  Three co-workers testified that she yelled, criticized supervisors and used profanity.  Ms. Lewis and another employee testified that she was upset but did not act inappropriately.  Ms. Lewis alleged that the true reason for her termination was her use of a wheelchair and that Humboldt Manor exaggerated the severity of her behavior to use it as a pretext for disability discrimination. 

The big news in employment law this week was the Supreme Court’s decision in Staub v. Proctor Hospital, the so-called “cat’s paw” case.  For those of you not familiar with the term, the cat’s paw theory holds an employer liable for the discriminatory animus of a manager who played no role in the adverse employment decision but exerted some influence over the actual decision maker.  

I came across an interesting article in The New York Times about hospitals and medical businesses in many states adopting strict policies against hiring smokers.

The first significant Supreme Court pronouncements on employment law are here and both seem tailored to create further litigation.  The first, decided late last week, is NASA v. Nelson, unanimously reversing a 9th Circuit decision that government employment background check questionnaires violated the constitutional right to “information privacy.” 

Most companies that have employment policies use some form of progressive discipline.  That is fine if it’s done the right way.  Unfortunately, in my practice I run across poorly executed and applied progressive discipline policies with alarming regularity.  Here are some thoughts on this subject that are all based on hard lessons learned by employers that I have represented.

I have been following a case concerning an employer’s obligation to protect employee data that has now come to a conclusion with two Ninth Circuit decisions.  Krottner et al. v. Starbucks arose from the 2008 theft of a laptop that contained the unencrypted names, addresses, and Social Security Numbers of approximately 97,000 Starbucks employees.   

You may recall my post from a couple months ago about Brett Favre’s alleged harassment of a New York Jets employee, Jenn Sterger.  The NFL has completed its investigation and has been unable to substantiate any allegations that Favre violated league policies.  However, the commissioner did conclude that Favre failed to cooperate with the investigation and was less than candid so he fined him $50,000, which is pocket change to Favre.  I was not going to bother commenting on this sorry spectacle until I happened to hear ESPN’s “legal analyst” on Sportscenter this morning.  The analyst, who shall remain nameless, expressed the following opinions: 1) Sterger could sue Favre and the Jets, although there might be some statute of limitations issues; 2) Favre could be considered her supervisor because he was higher up the chain in the Jets organization than Sterger; and 3) if Sterger were to file suit, her case would likely get to a jury.  The only question I had after hearing this was how can I get an analyst job at ESPN because I can do better than this.   

I read with interest the news reports of the recent lawsuit filed against the University of Kentucky by an Astronomer who claims that his religion cost him a job.