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.
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Is there protection under the law for discrimination/retaliation based on Sexual Orientation (Gay, Lesbian, Bi-Sexual, Transgender)?

As a plaintiff’s side employment lawyer (employee side) I have an unmatched sense of fulfillment when I am able to provide advice or assistance to an individual or group of individuals that are standing up to their employer for what they know is right and for what the law says is wrong. Conversely, I often consult with employees in awful employment situations that have no legal redress. It pains me to tell an individual that, although his/her situation is clearly wrong, the law does not recognize it as unlawful. The two most commons situations that arise are (1) workplace bullying and (2) discrimination based on sexual orientation (discriminating against an employee because he/she is gay, lesbian, bi-sexual, or transgender). Courts, however, are beginning to signal a trend that hopefully Congress will recognize. The future will provide full protection against this conduct but we aren’t there yet. This article focuses on the current protections under the law.
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Do you make too much money to be entitled to Overtime under the FLSA? Information on the Highly Compensated Workers Exemption.

The Fair Labor Standards Act (FLSA) affects most private and public employment and relates to, among other things, overtime pay and minimum wages. The FLSA requires employers to pay covered non-exempt employees at least the federal minimum wage and overtime pay for all hours worked over 40 in a work week. Covered employees must be paid for all hours worked in a workweek as set forth in the bullet points below.
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What Medical Exams and Inquiries can an Employer make of an Employee under the ADA?

Title I of the Americans with Disabilities Act (the “ADA”) restricts an employer’s ability to make disability-related inquiries or require medical examinations. The laws and rules depend on the stage of the relationship: pre-offer, post-offer but pre-employment, and during employment. This post relates to medical inquiries and examinations of an employee during employment.
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Are you really an Independent Contractor or “Exempt” from Overtime or Minimum Wage? Lawsuits for Misclassification soar in down economy.

As of July 26, 2012, there have already been 60 more lawsuits (7,064 total) filed under the Fair Labor Standards Act (FLSA) than the entire year of 2011. FLSA Lawsuits Article. The biggest increase in claims results from misclassifications. The two major problems areas exist when (1) an employer classifies an individual as an independent contractor when the individual is really and employee, and (2) classifying an employee as “exempt” from minimum and overtime. If you think you may be misclassified, check out the factors and links below.
Continue reading “Are you really an Independent Contractor or “Exempt” from Overtime or Minimum Wage? Lawsuits for Misclassification soar in down economy.”

Can weight or obesity be a protected class or a disability? Sometimes, under the ADA.

Discriminating against or terminating an employee because he or she is overweight is generally not unlawful. Weight is not a protected class under Title VII, however, weight can be a characteristic of a medical condition. Thus, in certain situations taking an adverse job action against an employee based on his or weight (too heavy or too thin) can be a violation of the ADA. The Amendments Act to the ADA provides an expansive definition of medical conditions that render a person disabled under the law. An individual must be able to perform the essential functions of his or her job with or without a reasonable accommodation. If a medical condition causes an increase or decrease in weight, but you are still able to perform your job with or with accommodation, an employer’s adverse job action taken against you due to your weight violates the ADA. Make sure your employer understands that you have a medical condition and that you request an accommodation, if necessary.
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The Department of Labor issues 16-page FMLA guide.

The 16-page FMLA guide that the Department of Labor (DOL) says is “designed to answer common FMLA questions and clarify who can take FMLA leave and what protections the FMLA provides.” Entitled “Need Time? The Employee’s Guide to the Family and Medical Leave Act,” the Guide apparently was created out of DOL’s belief that “too many workers don’t know about their rights under the FMLA and fail to take advantage of its protections,” as stated in a DOL press release. For more information on the guide, visit the DOL website.

View and download the FMLA Guide

Is your Leave going to exceed the 12 weeks provided by FMLA? You could still be protected under the ADA.

It is common scenario where an employee’s leave of absence for a serious medical condition exceeds the 12 weeks provided for by the Family Medical Leave Act. So what can an employee do in this situation? An employee can request an extended leave of absence as a reasonable accommodation under the Americans with Disabilities Act (ADA) (Remember: it is the employees burden to request a reasonable accommodation). This request then shifts the burden to the employer to show that an extended leave would cause “undue hardship.” Read the full article on Extended Leave under the FMLA and ADA.

For more information on the ADA, reasonable accommodations, and what constitutes undue hardship, check out the Equal Employment Opportunity Commission (EEOC) ADA fact sheet.

Pregnant Workers Fairness Act: Proposed Bill Extends Protection for Pregnant Women

Currently, pregnant women are a protected class under the Pregnancy Discrimination Act, an Amendment to Title VII of the Civil Rights Act of 1964. The new bill would extend protection to female employees with pregnancy-related work limitations, forcing employers to make reasonable accommodations and preventing them from terminating pregnant women due to inhibited performance. For more information related to Pregnancy Discrimination and the proposed law visit these links:
Pregnancy Discrimination Act (Current Law)
Facts on the Pregnancy Discrimination Act
Pregnant Workers Fairness Act: Proposed Language
New York Times Article on Pregnant Workers Fairness Act

When is Third Party Retaliation an Actionable Claim?

The Supreme Court has held that an employer can be found liable for terminating an employee when that employee’s fiance has engaged in a protected activity (Opposing discrimination, complaining about harassment, etc.) under Title VII (Discrimination). So what relationship needs to exist between the Third Party and the individual engaging in the protective activity to have an actionable claim? The Supreme Court has provided a factor test: Justice Scalia suggests that there are two factors that determine whether third-party retaliation is unlawful under Title VII: 1. The nature of the relationship; and 2. The severity of the employer’s action. Thus, he states: “We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.” Read more on Unlawful Third Party Retaliation.