Is The Employer Liable In A "cat’s paw" Claim Made Under USERRA?
The US Supreme Court held an employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision.
JUSTICE SCALIA delivered the opinion of the Court. "We consider the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision."
While employed as an angiography technician by respondent Proctor Hospital, plaintff petitioner Staub was a member of the United States Army Reserve. Both his immediate supervisor (Mulally) and Mulally’s supervisor (Korenchuk) were hostile to his military obligations. Mulally gave Staub disciplinary warning which included a directive requiring Staub to report to her or Korenchuk when his cases were completed. After receiving a report from Korenchuk that Staub had violated the Corrective Action, Proctor’s vice president of human resources (Buck) reviewed Staub’s personnel file and decided to fire him. Staub filed a grievance, claiming that Mulally had fabricatedthe allegation underlying the warning out of hostility toward hismilitary obligations, but Buck adhered to her decision. Staub sued Proctor under the Uniformed Services Employment and Reemploy-ment Rights Act of 1994 (USERRA), which forbids an employer todeny employment, reemployment, retention in employment, promo-tion, or any benefit of employment” based on a person’s “membership”in or “obligation to perform service in a uniformed service,” 38 U. S. C. §4311(a), and provides that liability is established “if theperson’s membership . . . is a motivating factor in the employer’s action,” §4311(c). He contended not that Buck was motivated by hostility to his military obligations, but that Mulally and Korenchuk were, and that their actions influenced Buck’s decision. After a jury trial, the jury found for the plaintiff.
Although the respondent employer, Proctor Hospital, argued that the basis of its decision to terminate Straub was independent reliance on other facts by the decision-maker (the vice-president of human resources), the Supreme Court disagreed that the "independence" of the decision-maker was sufficient to overcome the connection between the plaintiff's supervisor's actions which were held to be "a motivating factor" in the decision to terminate the plaintiff petitioner.
"We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."
Smart Phone "Hours Worked" Application Launched by Department of Labor for Employees
The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. This new technology is significant because, instead of relying on their employers’ records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records. The free app is currently compatible with the iPhone and iPod Touch. The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.
For workers without a smartphone, the Wage and Hour Division has a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times. The calendar also includes easy-to-understand information about workers’ rights and how to file a wage violation complaint.
Source: Department of Labor, Wage and Hour Division
Final Wage and Hour Regulations Published April 2011:
The Wage and Hour Division has published a final rule to revise regulations pursuant to the Fair Labor Standards Act of 1938 (FLSA) and the Portal-to-Portal Act of 1947 (Portal Act) that have become out of date because of subsequent legislation. These revisions conform the regulations to FLSA amendments passed in 1974, 1977, 1996, 1997, 1998, 1999, 2000, and 2007, and Portal Act amendments passed in 1996. For more information, see the final rule
Source: Department of Labor
Is An Oral Complaint of a Violation of the Fair Labor Standards Act Protected Conduct Under The Anti-retaliation Provision, 29 U.S.C. § 215(a)(3)?
The U.S. Supreme Court held that an oral complaint is protected conduct.
JUSTICE BREYER delivered the opinion of the Court. "The Fair Labor Standards Act of 1938 (Act) sets forth employment rules concerning minimum wages, maximumhours, and overtime pay. 52 Stat. 1060, 29 U. S. C. §201 et seq. The Act contains an antiretaliation provision that forbids employers 'to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.' §215(a)(3). We must decide whether the statutory term 'filed any complaint' includes oral as well as written complaints within its scope. We conclude that it does." Justices Thomas and Scalia dissented.
Kasten v. Saint-Gobain Performance Plastics Corporation, Docket No.: 09-834, 2011 U.S. LEXIS 2417 (Mar. 22, 2011).
Moral: Even a verbal complaint about a potential wage and hour violation should be investigated and the complaint should not be the basis of any discipinary action.
Crocker & Crocker The Kalamazoo Building 107 W. Michigan Avenue, 4th Floor Kalamazoo, Michigan 49007 (269) 381-8893
NOTICE: The articles and information provided on this website are for entertainment and educational purposes only. If you have specific legal questions, we recommend you contact a qualified legal advisor. (Crocker & Crocker is the assumed name of Crocker Law Firm, PLLC, a Michigan professional limited liability company)
