Employment Law

Cat’s Paw Making New Tracks: Second Circuit Extends Cat’s Paw Principle to Retaliation Claims and to Low-Level Employees


The “cat’s paw” doctrine, a concept first coined by Seventh Circuit Judge Richard Posner in 1990 and adopted by the Supreme Court in 2011, applies when an employee is subjected to an adverse employment action by a decision maker who does not have any discriminatory animus but who bases his or her decision upon information from another who has such an improper motive.  In Vasquez v. Empress Ambulance Service, Inc., the Second Circuit recently held that the “cat’s paw” theory may be used to support recovery for Title VII retaliation, in addition to discrimination, claims and then extended the doctrine to permit liability if the individual with the discriminatory or retaliatory motive is a low-level employee, not just a supervisor.


ECJ: No Discrimination Claims for Mock Applicants in Europe


Just in time for the 10th anniversary of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) the European Court of Justice (ECJ) has clarified that European anti-discrimination law does not protect mock applicants, i.e. applicants who are not interested in being hired, but solely apply in order to bring claims on the grounds of discrimination. The judgment will make it easier for companies in Europe to reject such discrimination claims in the future.


Final Fair Pay Rules Are Here: Contractors Face Complex Requirements and Challenges with New Reporting Obligations


The federal government released the final regulations implementing the Fair Pay and Safe Workplaces Executive Order (“EO” hereafter) this week.  The regulatory package contains two parts: amendments to the Federal Acquisition Regulations and guidance from the Department of Labor for implementing the regulations. The regulatory package is a central part of the Administration’s aggressive regulatory agenda we have previously discussed and reflects continuing burdens on federal contractors.


California Supreme Court Holds “No Universal Rule” Exists When Deciding Who Should Determine Availability of Classwide Arbitration


On July 28, 2016, the California Supreme Court added to the ever-changing body of case law regarding classwide arbitration when it held that “no universal rule” exists regarding who (the court or the arbitrator) should decide whether classwide arbitration is permissible under an arbitration agreement, and that this issue must be decided on a case-by-case basis. 


SEC Bounty Hunters Take Heart: SEC Fines Company $265,000 For Using Severance Agreements That Provided a Waiver of Any Monetary Recovery For Filing a Tip

shutterstock_150166427_200x150Today, the SEC announced that an Atlanta-based company, BlueLinx Holdings, is settling charges that its severance agreements contained provisions that it in its view might impede employees from communicating directly with the SEC about possible securities law violations. The company has agreed to pay a $265,000 sanction and to engage in other corrective actions as described below.

The specific provision at issue provided:

  • Employee further acknowledges and agrees that nothing in this Agreement prevents Employee from filing a charge with…the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other administrative agency if applicable law requires that Employee be permitted to do so; however, Employee understands and agrees that Employee is waiving the right to any monetary recovery in connection with any such complaint or charge that Employee may file with an administrative agency. (Emphasis added.)

With respect to this bounty waiver, the Commission stated that “by requiring its departing employees to forgo any monetary recovery in connection with providing information to the Commission, BlueLinx removed the critically important financial incentives that are intended to encourage persons to communicate directly with the Commission staff about possible securities law violations.”


Justice Scalia’s Employment Law Legacy


On February 13, 2016, Justice Antonin Scalia, the anchor of the Court’s conservative wing for nearly three decades, passed away.  He leaves behind a distinguished legal career that involved experience in wide range of roles.  After graduating from Harvard Law School, Justice Scalia entered private practice and then became a law professor at the University of Virginia.  He served in the Nixon and Ford administrations, eventually becoming Assistant Attorney General.  Scalia then began his judicial ascension when President Ronald Reagan nominated him to the United States Court of Appeals for the District of Columbia Circuit.  Soon thereafter, Reagan nominated Scalia to the Supreme Court to replace Justice William Rehnquist, whom Reagan had named to the Chief Justice position.  Scalia was unanimously confirmed.


What Can Brown Do For PAGA? Budget Proposal Seeks Greater Oversight of PAGA Claims


California Governor Jerry Brown’s administration recently submitted a budget proposal to the California Legislature that would increase State oversight of Private Attorneys General Act (PAGA) claims and amend the PAGA statute accordingly.  The proposal has significant implications for the administration of PAGA claims going forward.


The Times They Are A-Changin: National Labor Relations Board Revises The Joint-Employer Test After More Than Thirty Years


After more than 30 years, the National Labor Relations Board (the “Board”) has concluded that it was time to change the standard for determining when companies are to be considered joint employers under the National Labor Relations Act.  On August 27, 2015, with its much-anticipated decision in Browning-Ferris Industries of California, Inc., the Board issued a new joint-employer standard that will examine whether an employer has the potential to exercise control over employees’ working conditions and reversed the previous requirement that a joint employer must exercise direct and immediate control over the employees in question.


D.C. Circuit Confirms: Attorney-Client Privilege Applies to Internal Investigations of Whistleblower Complaints Conducted at the Direction of Counsel


The ability to preserve privilege for highly sensitive internal investigations conducted at the direction of attorneys is alive and well.  In a closely watched decision on the scope of the attorney-client privilege as applied to internal investigations, the D.C. Circuit granted defense contractor Kellogg Brown & Root’s (“KBR”) petition for a writ of mandamus and vacated a district court’s order that privileged documents from an internal investigation must be produced.


N.D. Cal. Judge Puts a Check on Plaintiff’s Novel LinkedIn Background Check Theory Under FCRA


The federal Fair Credit Reporting Act (FCRA) has recently spawned an unprecedented number of class action complaints against employers for allegedly failing to comply with FCRA’s hyper-technical disclosure and consent requirements before conducting background checks or proceeding with “adverse actions.”  As these cases have evolved, plaintiffs have expanded their focus beyond traditional background checks and have started attacking employers’ use of ever-evolving technologies, like social media accounts, that are often accessible and searchable through just a few clicks of a mouse.