June 2012

On June 18, the Labor Board (“Board”) announced the creation of a new webpage describing the rights of employees to act together for their “mutual aid and protection, even if they are not in a union.” Many employers may see this as the latest example of “we’re from the government and we’re here to help you.”

Some employers fail to recognize that employees not represented by a union still enjoy protections under the National Labor Relations Act (“Act”). This new website will certainly raise the level of awareness of rights for unrepresented employees and could lead to more charges by unrepresented employees.

Continue Reading Board Launches New Webpage Discussing Employee Rights

Some recent court rulings have referred to the “cat’s paw theory” of liability for discrimination. Employers should be aware of these recent decisions because:

  • Employers can be held liable under this theory, even if there is no evidence that the ultimate decision-maker acted in a discriminatory manner;
  • Supervisors who wrongly influence a termination decision can be personally liable in a race case under Section 1981; and
  • This is a terminated employee’s answer to the employer-friendly “honest belief” rule.

Continue Reading Cat’s Paw Theory: What Is It? Why Should I Care?

A Tennessee federal judge recently ruled that a termination notice referring to an employee’s “long-term disability” was direct evidence of discrimination and retaliation.  The Court granted the employee judgment as a matter of law under the ADA.

The employee, Coffman, had been off work on an extended medical leave.  She had exhausted her FMLA leave and remained off work due to restrictions.  Coffman refused a job offer of a sedentary job.  Notes from Coffman’s physician indicated that the refusal was unreasonable, but the employer did not obtain those notes until after it had fired Coffman.  At the time, the Company accepted her refusal of the sedentary job and kept her on leave.  Continue Reading Termination Notice Referring to Disability Considered Direct Evidence of Discrimination

Some employers use last chance agreements (“LCA”), particularly in union settings, to allow hourly employees “one last chance” to improve performance.  In return, the employee waives the right to use the union’s grievance and arbitration process if later termination is due to continued failure to improve performance or due to another policy violation.  Employers will explain that the employee otherwise would be terminated, but can remain employed in return for signing this “one last chance” agreement; if the employee fails to sign the LCA, the employee will be terminated for the underlying violation which led the employer to offer the LCA.

Some employers also require employees to release statutory civil rights in an LCA.  As an employer recently learned, this practice is hazardous and can lead to significant liability.

Continue Reading Last Chance Agreements – Asking for Waiver of Discrimination Claims Perilous