October 27, 2010

If only we had a crystal ball

Posted in Discrimination, Employee Privacy, Fair Labor Standards Act tagged , , , , , , , , , , at 9:35 am by Tom Jacobson

When it comes to making decisions about employment practices, the goal is always to choose a course that will withstand legal scrutiny.  If we had a crystal ball and could predict how our choices now will be perceived by the courts in the future, those decisions would be much easier to make.   Because no one has that magic foresight, the best we can do is to make decisions based on past precedent and the current state of the law.

However, the United States Supreme Court’s docket does give us a glimpse of things to come, and that docket shows that several important employment-related questions will soon be answered.  One of the most significant cases is Staub v. Proctor which relates to discrimination cases where the actual bias was held by a lower-level company official but the adverse employment decision was made by someone higher up in the organization.  This is often referred to as “cat’s paw” or rubber-stamp liability.  The outcome of this case could have a major impact on how how personnel decisions are made.

The high court will also consider two retaliation cases, Thompson v. North American Stainless LP and Kasten v. Saint Gobain Performance Plastics Corp.  In the Thompson case, the fiance’ of an employee who filed a discrimination charge alleged that he was fired in retaliation for her charge.  The Thompson case could drastically increase the number of “associational” retaliation claims.  Kasten will resolve the question of whether an employee’s unwritten complaint to an employer can provide the basis for a retaliation claim under the Fair Labor Standards Act.

Employee privacy issues are before the court in NASA v. Nelson.  In that case, the concern is a question about illegal drug use asked during a background check.  The court  will also be considering the arbitration of employment claims (AT&T Mobility v. Concepcion), inconsistencies between a summary plan description and the plan itself under the Employee Retirement Income Security Act (CIGNA v. Amara), and an Arizona law that requires Arizona employers to use E-verify and revokes the business licenses of employers who knowingly hire illegal immigrants (Chamber of Commerce of the USA v. Whiting).

If only we had a crystal ball, we could make all personnel decisions knowing that they would withstand legal scrutiny if they were challenged in the future.  For now, the best we can do is make decisions based on what we already know, pay close attention to the ever-changing landscape , and then adjust our course when needed.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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