On Wednesday this week, all nine justices agreed that the Dodd-Frank Act’s anti-retaliation provision does not extend to an individual who has not reported a violation of the securities laws to the Securities and Exchange Commission (“SEC”). In other words, making only internal complaints does not shroud an employee in whistleblower protection under the Dodd-Frank Act.
In the case of DiFiore v. CSL Behring, LLC, the Third Circuit ruled for the first time that the more demanding “but for” causation standard applies to retaliation claims under the False Claims Act (“FCA”), rejecting the lower “motivating factor” (also commonly known as the “mixed-motive”) standard. The Third Circuit’s ruling is a welcome result, especially for employers who deal with the federal government and may, therefore, be exposed to FCA retaliation claims. But, employers need to be mindful that different causes of action have different causation standards. For example, the more stringent “but for” standard applied by the Third Circuit to FCA retaliation claims also applies in Title VII retaliation and ADEA cases, but the lower “mixed motive” standard applies in other cases, including “status based” Title VII and ADA discrimination claims. So, employers are left with a mishmash of different causation standards to consider when assessing risk around employment decisions and defending cases.
As 2016 came to a close, New York City became the first in the nation to enact a law establishing payment protections and remedies for freelance workers. On November 16, 2016, Mayor de Blasio signed into law the Freelance Isn’t Free Act, which will go into effect on May 15, 2017. This new law imposes several significant requirements on freelance work arrangements, which we discuss below.
The Second Circuit recently adopted the “Cat’s Paw” theory of liability in Title VII cases. This was hardly a surprise as other Circuit Courts had done the same after the United States Supreme Court endorsed Cat’s Paw in a USERRA case. But the Second Circuit went even further, allowing for the use of the Cat’s Paw argument in Title VII retaliation cases and in cases where a non-supervisory employee’s discriminatory actions lead the employer to take an adverse employment action against that employee’s co-worker. Until now, Cat’s Paw had mostly focused on employer liability based on the actions of misbehaving supervisors in hostile work environment cases. The decision puts additional pressure on employers to identify and eliminate discriminatory behavior in their workplaces. This post will briefly examine the Cat’s Paw doctrine and explain how the Second Circuit’s expanded its use in Vasquez v. Empress Ambulance Service, Inc., No. 15-3239 (2d Cir. Aug. 29, 2016).
The Fifth Circuit recently held that a third party witness who was fired after providing information in response to her employer’s investigation of a coworker’s harassment allegations had to demonstrate she had a “reasonable belief” that the conduct she reported violated Title VII in order to prove her retaliation claim.
Ah, the tell-tale signs of March are here. The winter is starting to dissipate in the northern climes, we’ve set the clocks forward, and Syracuse is bound for another Final Four run. Unfortunately, most teams won’t be so lucky and many coaches will soon find themselves on a beach. And why not? After a long, hard-fought season that fell just a bit short, might as well take a warm-weather vacation – go for a quick swim, maybe hit the amusement park, and take a few pictures of all the fun in the sun and post them to Facebook. Sounds like a marvelous idea for many NCAA coaches, but not so much for employees out on FMLA leave. The plaintiff in Jones v. Gulf Coast Health Care of Delaware, a recent case out of a Florida federal court, learned this the hard way.
Beginning April 1, 2016, new California regulations (§11023 specifically) will require all California employers with more than five employees to have written policies regarding harassment, discrimination, and retaliation. For some employers, this may mean drafting a specific policy for the first time; for others, it may require some tinkering with an existing policy. Below we address the new regulations.
To prove retaliation a plaintiff must show that he or she suffered an “adverse employment action” – an issue that is often conceded by employers defending against such claims. However, the Fifth Circuit’s recent decision in Brandon v. The Sage Corp. is a great reminder as to why employers should not overlook this issue.
The so-called “manager rule” addresses a concern that employers may face a “litigation minefield” if a manager whose very job duties required them to report discrimination complaints could later sue for retaliation if they were adversely affected by the making of that report. Employers argue that the manager is not really “opposing” a discriminatory practice sufficient to invoke Title VII’s anti-retaliation protections, when they are in essence just doing the job the employer assigned them. Last month, the Second Circuit (in Littlejohn v. City of New York) and Fourth Circuit (in DeMasters v. Carilion Clinic) addressed the “manager rule,” and while both courts rejected its application, the Second Circuit did adopt a somewhat employer-friendly variation. A brief discussion of these cases and their implications for the manager rule follows below.
In Precia Jones v. SEPTA, the Third Circuit Court of Appeals last week joined six sister courts in finding that a suspension with pay typically does not constitute an “adverse employment action” within the meaning of Title VII and analogous Pennsylvania law.