Month: September 2019

How will the Supreme Court’s opinion in Genesis impact FLSA collective actions?

Take Aways:

1. The United States Supreme Court’s Genesis holding offered nothing to resolve the circuit split and dodged the central issue: Whether an unaccepted offer of judgment that fully satisfies a plaintiff’s FLSA claim moots the claim.

2. Going forward, the Court’s holding in Genesis is meaningless because it is premised on the contemplation of a situation that should never arise—at least according to the Dissent.

3. To ensure the best chances of proceeding with FLSA claims, lead plaintiffs in collective actions should file motions for collective certification as soon as possible to avoid attempts to moot the case using offers of judgment.


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Cat’s Paw Theory: Can a Company be held liable if the discriminating supervisor and the individual(s) who made the decision to terminate are different?

Traditional discrimination or retaliation claims involves the employer taking the discriminatory or retaliatory action. Often times companies will try to create an independent process for terminating an employee to avoid liability. For example: an employee receives several disciplinary write-ups. After a certain amount of write-ups, Human Resources becomes involved. At large companies, the HR Representative may have never met the individual. After review the write-ups, HR determines to terminate the individual. Companies then argue, how could the termination be discriminatory or retaliatory if the individual making the decision has never even met the employee being terminated? Clever. But so are Judges.
Continue reading “Cat’s Paw Theory: Can a Company be held liable if the discriminating supervisor and the individual(s) who made the decision to terminate are different?”