KMK Law Management Rights Blog

It seems that all issues in employment law have their day in the sun and then another and another, etc.  I have noticed in the past couple of weeks that several issues I have commented on have come up again.  In no particular order, here is an update on issues from past blog posts.

1.  NLRB Targets Another Social Media Policy—In this post, I covered the NLRB’s efforts to target another social media policy as a violation of §8(a)(1) of the National Labor Relations Act.  This time, the claim involved the employer’s reaction to an employee’s Twitter post.  Unfortunately for those of us interested in seeing how this might play out, the union and the employer recently agreed on a tentative contract that included a settlement of the Twitter issue.  

2.  SCOTUS Cat's Paw Decision Bad News for Employers —This post covered the Supreme Court’s decision in Staub v. Proctor Hospital, the so-called “cat’s paw” case.  I noted that "the Court introduces concepts of agency law and negligence into the analysis of employment law issues.  These concepts always require a fact specific analysis and are seldom able to be resolved by courts at the summary judgment stage, meaning employers will be exposed to more jury trials.”  Some commentators have suggested that this is already happening with the Blount v. Ohio Bell Telephone Co. case, decided shortly after Staub.  As reported by FMLA Insights:

In Blount v. Ohio Bell Telephone Co., the employer maintained a "performance management system" that disciplined employees for failing to meet certain goals.  Managers were given wide discretion to decide whether to issue discipline when an employee did not meet set goals.  In Blount, two employees who had recently taken FMLA leave sued after they were terminated for failing to meet certain goals under the performance management system.  In short, the employees claimed they had been treated differently than other employees who failed to meet the same goals but were not terminated.

In defending the claim, the telephone company claimed that the decision to terminate the employees came from top-level management, not the employee's direct supervisors.  Thus, the employer claimed that any alleged biased from the lower-level managers had no bearing on the ultimate termination decision.  The Court disagreed:

Even if the decision to punish and terminate resided higher in the supervisory chain, . . . the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub (discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).

As a result, the Court allowed the employees' FMLA retaliation claims to be considered by a jury.

A similar post is at the Ohio Employer Law Blog.  The consensus in both posts is that it is time to start training managers on these issues.  I concur. 

3.  Bedbugs Bugging Your Workplace?—In this post, I considered the implications of the bedbug epidemic on the workplace.  Recently, I have had several e-mails from employees asking for advice on this issue.  Frankly, I do not have a lot to add to my original post.  I continue to believe that there are potential issues for employers who do not address this issue properly but, to date, I have been unable to locate any cases filed directly against employers.  The one high profile case out there was filed by a Fox News employee in New York who was bitten at work. She has sued the building's owner, management company and maintenance company but not her employer because she has received full workers compensation benefits for her psychological injuries.  That case was recently dismissed.