Recently in Supreme Court Category
In an odd twist, the Court explicitly declined to address whether the employee must make a complaint to a governmental agency to be protected, even though the case involved an employee who complained only to the employer. (In other words, if the employee must complain to an agency, Kasten doesn't have a retaliation claim.) Apparently, the employer hadn't kept this argument alive properly on appeal, so the Court wasn't required to consider it. And in the majority opinion, Justice Breyer argued that there was no need for the Court to resolve this question, because it wasn't necessary to the Court's decision in the case. Still, it's a fairly large issue to leave undecided, especially when the claims of the actual employee in the case depend on how it's resolved.To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.
- a supervisor takes action, motivated by discriminatory bias, intending to cause an adverse employment action against the employee, and
- the supervisor's action is a proximate cause of the action against the employee.
- Investigate! Cat's paw liability depends on causation -- in other words, the person with the discriminatory motive must have some effect on the decision. If the decision maker independently examines the facts, the causal chain is broken. Presumably, the decision maker will uncover the discriminatory bias (and therefore decide not to take action against the employee at all). It wouldn't have been hard in the Staub case, in which these supervisors were apparently willing to tell everyone how they felt about Staub's military obligations.
- Train managers. In the Staub case, two supervisors appear to have had an ongoing campaign against an employee for wholly inappropriate and discriminatory reasons. A little training could have gone a long way here. If supervisors aren't making discriminatory statements and decisions in the first place, they won't be creating liability for the company.
- Think about settlement. For the unhappy employers that find themselves on the wrong end of a valid cat's paw claim, the Supreme Court's decision virtually guarantees that the case won't end early. Questions of motive (in a cat's paw case, the motives of at least two people: the allegedly discriminatory supervisor and the ultimate decision maker), cause, and the effectiveness of an investigation can be answered only by examining the underlying facts. If those facts are in dispute, the employer won't be able to end the case by winning a motion for summary judgment. Instead, the case will go to trial, where a jury will have to ultimately decide where the truth lies.
- Oral complaints of violations of the Fair Labor Standards Act (Kasten v. Saint-Gobain Performance Plastics Corp.). An employee is fired for repeatedly failing to punch in and out on the time clock. The employee claims that he made numerous oral complaints that the location of the time clock required employees to clock in only after donning their safety gear for work, and to clock out before taking that gear off, which resulted in unpaid overtime. The employee filed -- and won -- a class action lawsuit on the overtime question; now, the Supreme Court will decide whether he has a retaliation claim. At issue is whether an oral complaint is protected by the FLSA's provision prohibiting retaliation, or whether a complaint must be in writing to be protected. (The excellent SCOTUSBLOG has links to key documents in the case here.)
- Evidence of bias in someone who influenced the decision maker (Staub v. Proctor Hospital). This is the cat's paw case, so-called because of a French fable (which also involves, according to the Court of Appeals decision in the case, some chestnuts and "a clever-- and rather unscrupulous--monkey"; but we digress). In this case, the employee was fired and claimed it was because of his military service, in violation of USERRA. There was plenty of evidence of bias against him on this basis, but by someone other than the person who decided to fire him. The Supreme Court agreed to decide whether an employer can be held liable for the discriminatory bias of someone who caused or influenced but did not ultimately make the employment decision at issue.
- Retaliation against someone associated with the complaining employee (Thompson v. North American Stainless). An employee filed an EEOC charge, alleging that her employer discriminated against her based on gender. Three weeks after the EEOC notified her employer of the charge, the employer fired her fiance, also an employee; the two met at work and their relationship was known in the workplace. Can the fiance file a retaliation case, even though he never engaged in any protected activity (complained of discrimination or harassment) himself? The federal Court of Appeals for the Sixth Circuit said no; the Supreme Court will decide.
- Background checks for federal contractors (NASA v. Nelson). This case, brought by employees of CalTech who worked in a research lab jointly run with NASA, challenges the federal government's background check requirements as a violation of the right to informational privacy. You can read my previous post summarizing the facts of the case here. For a summary of the oral argument (held last week), check out this recap on SCOTUSBLOG.
- Arbitration agreements that don't allow class-wide arbitration (AT&T v. Concepcion). This is a consumer case rather than an employment case, but it could have far-reaching effects in the employment field. Several people sought redress from AT&T, which advertised that subscribers got a free phone, but in fact charged sales tax on the value of the phones. The subscriber agreement with AT&T required customers to arbitrate their claims, and prohibited them from bringing a class action-style arbitration on behalf of all subscribers who got hit with the tax. The federal Court of Appeals for the Ninth Circuit found that the arbitration agreement was unconscionable -- and therefore unenforceable -- because it prohibited class-wide claims. The Supreme Court agreed to hear the case.
- The requirements Arizona's immigration law imposes on employers (Chamber of Commerce v. Whiting). In a rare case in which the Chamber of Commerce and the SEIU are on the same side, this lawsuit alleges that Arizona's controversial immigration law -- and specifically, its sanctions (including revocation of business licenses) against employers who hire unauthorized workers is preempted by federal law -- is preempted by federal immigration law. The case also challenges Arizona's requirement that all employers use the federal eVerify system.
The Supreme Court has decided its first case on workplace electronic monitoring, City of Ontario, California v. Quon. The case involved Jeff Quon, a member of the city's SWAT team, who -- along with the rest of the team -- was issued a pager with texting capabilities. The city had a written policy informing employees that their email and Internet use was not private, and told employees that same policy applied to the pagers. However, employees were told that their usage wouldn't be monitored as long as they paid any fees imposed for going over the character limit each month.
After Quon exceeded the limit several times, the city decided to audit his messages for the past two months to determine whether the city should raise its character limit. The audit revealed that Quon had used his pager extensively for personal messages, including sexually explicit messages. Quon and several people with whom he had texted sued, alleging invasion of privacy. (You can find more details on the facts of the case in my earlier post, here.)
The U.S. Court of Appeal for the Ninth Circuit found in Quon's favor. It found that Quon had a reasonable expectation of privacy in his text messages, based on his supervisor's statements that those messages would not be read. It also found that the city had a reasonable justification for searching. In the end, the Court found that the city should have used less intrusive means of determining whether to raise its character limit, such as asking Quon to perform the audit himself or warning Quon that his messages would be audited going forward.
The U.S. Supreme Court disagreed, finding that the city's monitoring was justified and that Quon had no legal claim that he had been subjected to an unreasonable "search" under the Fourth Amendment of the Constitution. The outcome isn't surprising: Courts have largely upheld the rights of employers to monitor employee communications, in the public and private sector. The Ninth Circuit's decision was the outlier in this regard.
What was more interesting, however, was the Court's discussion of how the law should treat technology. Justice Kennedy's opinion for the majority says:
The Court must proceed with care when considering the whole concept of privacy expectations on communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . . Cell phone and text communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That may strengthen the case for an expectation of privacy.
This section of the opinion led to a separate opinion by Justice Scalia, who didn't much care for the notion that the Court should exercise caution by making a limited decision simply because technology is evolving. In his words, "The-times-they-are-a-changin' is a feeble excuse for disregard of duty." He nonetheless agreed with the outcome of the case.
Because Quon involved a public employer, it doesn't apply directly to the private sector, which is not bound by the Fourth Amendment. However, courts have generally followed similar principles in analyzing these cases against private employers. One clear takeaway from the Quon case is, in the words of Justice Kennedy: "[E]mployer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated." (And now a word from the shameless commerce division: If you need help putting together clear communications policies, pick up a copy of my book, Smart Policies for Workplace Technologies.)
The Supreme Court has ruled that the National Labor Relations Board (NLRB), the administrative body that decides representation and unfair labor practices cases, had no authority to issue decisions while it had only two members. For more than two years, the NLRB (which ordinarily has five members) was down to two members, one Republican and one Democrat. These two members decided about 600 cases in which they could agree on the outcome; if the panel split, no decision was issued.
The dispute before the Supreme Court was over the interpretation of a provision of the National Labor Relations Act that gives the NLRB the authority to delegate its powers to a quorum of at least three members -- and, that once such a three-member group has been designated to handle certain issues, two of its members may constitute a quorum as to those issues. Confused? So were the federal Courts of Appeal, which split as to whether this provision allowed the NLRB to decide cases with only two members or required at least three members. (See my previous post for a few more details on this dispute.)
In the Supreme Court case, New Process Steel v. National Labor Relations Board, five Justices found that the provision about two members acting was effective only if everyone in the three-member quorum was still on the Board. So, for example, if a three-member quorum had properly been delegated the right to hear cases, and one of the members had to recuse him- or herself from hearing a particular case (say, because of a conflict of interest), the remaining two members could issue a decision -- but only if the third member was still on the Board. Once the Board had only two members, they were no longer authorized to issue decisions.
But they did anyway. Which raises the question: What about those 600 or so decisions? Can the party that lost go back and reopen the case? If so, where should those cases be heard -- by the now four-member NLRB? In federal court? And what of the parties who have had to act in accordance with the rulings of the now-declared illegitimate two-member "rump" by, for example, recognizing a union or losing an unfair labor practice case?
Lots of questions, and not so many answers just yet. There's a nice analysis of the issues over at SCOTUSBLOG. The post points out that the NLRB has issued a statement saying that it expects all pending appeals of two-member Board decisions to be remanded to the Board, so it can "further consider" and resolve them. However, it's still unclear how the many more cases that are now done and dusted -- either because they were never appealed or because the appeal has been decided -- will be dealt with.
A while back, I wrote a post about a disparate impact case on the Supreme Court's docket, Lewis v. City of Chicago. The case dealt with time limits: specifically, which events start the 300-day statute of limitations clock for filing a charge of discrimination with the EEOC. (To bring a Title VII lawsuit, the plaintiff employee or applicant must first file a discrimination charge with the agency.) In this case, the municipal employer claimed that the applicants waited too long to file their discrimination charges. Today, the Court unanimously disagreed, finding that the applicants filed their charges in time and were entitled to bring their lawsuit.
The case involved a written test the city gave for applicants to be firefighters. The city gave applicants their test scores (which divided applicants into the categories of "well qualified," "qualified," or "not qualified") and were told that they were unlikely to be hired unless they fell into the "well qualified" category. Later, the city began its actual hiring, and did just what it had said it would do: It used the earlier announced cut-off scores to choose successful applicants from those in the well qualified category.
A group of African-American applicants challenged the practice as discriminatory based on disparate impact. The city countered that the applicants should have filed their charges at the EEOC within 300 days of learning what their test scores were and how the city intended to use them. The applicants contended that they filed their charges in a timely manner, within 300 days after the city applied that announced policy to actually make hiring decisions, and the Court agreed.
It's hard to see how the Court could have held otherwise, for two reasons: First, as Justice Scalia's opinion points out, requiring the plaintiffs to sue within 300 days of the announcement of a policy or forever hold their peace would insulate ongoing discrimination from challenge. Once the employer made it past the 300-day mark, it could apply its discriminatory policy with impunity forever.
Second, what if circumstances changed or the city decided not to go forward with the policy after all? For example, what if the city suddenly had the money to hire many more firefighters than it had previously planned to hire, and so was able to accept applicants whose scores were too low for the well qualified category? Or, what if the city had second thoughts about the policy and decided not to follow it by the time hiring began? An applicant who sued anyway based solely on the city's announcement of its policy -- which it didn't go on to apply -- would have a tough time prevailing in court.