"But for" standard applies to retaliation claims

The Supreme Court has decided retaliation claims under Title VII require proof of "but for" causation establishing a confusing reality for trial judges and jurors making factual findings in cases involving discrimination claims and retaliation claims. Its confusing enough for attorneys. Now a finding of discrimination must be supported by the conclusion discrimination was a "motivating factor" while a finding of retaliation must be supported by a finding it was the "but for" cause for the adverse action.

Supreme Court narrows vicarious liability for sexual harassment

In a  5-4 opinion, Vance v. Ball State University,  the Supreme court clarified and narrowed employer liability for sexual harassment in the workplace. The Court reduced the class of individuals whose conduct can create vicarious liability for the employer to “supervisors”  empowered by the employer to take tangible employment actions against the victim. All other supervisors are co-worker-employees whose conduct can only create liability by proving the employer was negligent, including it knew or should have known the harassment occurred, but failed to act to prevent or promptly remediate it. This is substantially narrower liability than under the National Labor Relations Act, which expressly defines "supervisors" in broad terms. This also presents an opportunity for employers to create another layer of insulation against unexpected allegations of harassment.

Non-payment on payday is a FLSA violation

The federal ninth circuit has held that late payment of wages to an employee constitutes a minimum wage violation. Rother v. Lupenko, et al., Nos. 11-35922, 11-35953. (April 12, 2013). For purposes of the federal minimum wage requirement, late payment of wages after payday is a failure to comply with the minimum wage requirements of the FLSA. I'm pretty sure this result would be hard to replicate in the Fifth Circuit, and that a reasonable delay in payment would likely be a de minimis violation not subjecting the employer to a finding of a violation under the FLSA.

Are interns employees?

Whether interns are employees subject to the Fair Labor Standards Act was decided in the affirmative by a federal district court in New York. Unpaid internships have proliferated in recent years. In this case the interns worked in the film industry. The inquiry as to whether an intern is an employee for purposes of the FLSA is a fact driven one, but employment status is defined very broadly to include anyome who the employer "suffers or permits to work."

Firing Momma

A recent panel opinion of the Fifth Circuit, EEOC v. Houston Funding II, Ltd, No. 12-20220, reversed summary judgment in an employer's favor where the employer discharged a lactating mother. The holding, on the facts presented, found the EEOC, in representing the plaintiff had met its McDonnell-Douglass burden of presenting a prima facie case that the employer had terminated the plaintiff's employment on account of a pregnancy related condition. Of note, Judge Jones' concurring opinion reminds practitioners there is no duty to accommodate lactating mothers under Title VII. But it does not address the fact that:

[t]he Patient Protection and Affordable Care Act (“Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. The break time requirement became effective when the Affordable Care Act was signed into law on March 23, 2010.

http://www.dol.gov/whd/nursingmothers/ 

175,000 Jobs Created in May

The Bureau of Labor Statistics (BLS) has issued its May jobs report. While 175,000 jobs were created the unemployment rate edged up slightly from 7.5% to 7.6%. The drop is largely due to additional participation in the labor force.

Baseball

Its been a while since our last post, between work and coaching a 9-10 baseball team, my time has been pretty eaten up, and nothing has caught my attention that inspired the effort to post. Lafe Solomon's renomination almost got me there as well as a couple of decisions, but not yet. I plan to do better.