Employment Law
By Thomas L. Boyer

In employment law, the cat’s paw theory is named after an 18th century French fable in which a clever monkey induces an unwitting cat to reach into a fire and retrieve chestnuts. The duped cat burns his paw while the monkey eats the chestnuts.

Applied to modern employment discrimination cases, a cat’s paw scenario occurs when a lower level employee without the authority to hire and fire wants another employee terminated for an unlawful, discriminatory reason. The lower level employee persuades the manager to terminate the victim by convincing him that the employee should be discharged, or suffer another adverse employment action, for a legitimate, non-discriminatory purpose.

The 7th Circuit Court of Appeals and other courts stated that in this situation a terminated employee did not possess a legitimate discrimination claim against his former employer because the decision-maker who actually accomplished the discharge held no animus against the employee and had no intent to discriminate against him.

In the case of Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011) the U.S. Supreme Court overturned the decision of the 7th Circuit Court of Appeals. The Supreme Court ruled that an employer is responsible for unlawful discrimination if a lower level employee gets another employee fired for a legally impermissible reason even if the final decision-maker was unbiased.

Staub v. Proctor Hospital is a forceful reminder that before an employee is terminated it is essential to confirm that the stated reasons for the discharge are legitimate and not a subterfuge for impermissible motives.

Posting of Employee Rights

Since 2009, the National Labor Relations Board (NLRB), which administers a number of federal labor laws relating to the rights of employees to organize into unions, has issued a significant number of pro-union decisions. The direction of these decisions is not a mystery since the majority of the five-member NLRB, including two members who were former union officials and/or representatives, were very favorable toward unions.

Recently, the NLRB issued a rule requiring all employers subject to federal labor law, which encompasses almost all employers, to post in the workplace a printed notice to employees of their rights to organize or join labor unions, negotiate union contracts, strike and picket, as well as other employment-related activity. Also on this notice as bullet points is a list of employer actions which may be illegal, and the procedures for filing charges against an employer if an employee suspects the employer is engaging in unlawful conduct.

The obligation to post this notice was set for November 14, 2011. However, the issuance of this reporting rule caused the filing of a flurry of lawsuits by employer groups, including the National Association of Manufacturers, that argue that the NLRB does not have the jurisdiction or authority to issue such a rule. There has been no result from any of these cases but the effective date for posting the notice has been delayed until January 31, 2012.

For further information regarding these matters, please contact Mr. Boyer at 248.740.5666 or via email.