Roy’s Analysis of Quirky Question # 183, Retaliating Against an Applicant Who Previously Sued Under the FLSA
Quirky Question # 183:
We recently made an offer to an applicant for an important job at our company. The offer was conditioned on a satisfactory background check and her passing our standard drug test. She had no problem with the drug test. But, when we did the background check, we discovered that she had sued her former employer for violations of the Fair Labor Standards Act. Based on that fact, we want to pull the offer. Do you see any problems with that decision? Are we buying litigation?
Roy’s Analysis:
You ask whether you are “buying litigation” if you reject an otherwise qualified candidate for employment solely because you have discovered that she previously sued a former employer for alleged violations of the Fair Labor Standards Act (FLSA). In one important respect, your question is incomplete. Another way to frame your inquiry is whether you are “buying litigation you cannot win?” Whereas you may be setting your company up for a lawsuit by withdrawing your conditional job offer, this is a lawsuit that you can and should win. Before addressing that topic more specifically, let me flag a few other issues for your consideration.
First, why is it so important to you that your applicant previously sued a former employer for FLSA violations? Have you concluded that this fact alone makes it more likely that she will institute litigation against your company? If so, why?
It could be that her former employer did violate the FLSA. Perhaps her former employer did not pay her, or other employees, the minimum wage. Perhaps her former employer did not provide overtime compensation for hours she or others worked over 40 each week. Perhaps her former employer misclassified her as an exempt employee to avoid the overtime obligation? Assuming that any of these hypotheticals were true, and she sought redress for these statutory violations, why would those facts disqualify her from working for your company?
Although, as discussed further below, you may not have a legal obligation to explore these issues, you might want to gain a better understanding of the facts that precipitated her prior litigation. Did she try to rectify the statutory violations before initiating suit? Did the employer admit that it had ignored key FLSA provisions? Did the lawsuit settle promptly? Did she prevail in the litigation? Or, conversely, was the lawsuit frivolous and quickly dismissed? In this last context, I could understand your concern about retaining the former disappointed litigant. In the former fact patterns, not so much. Read more
Roy’s Analysis of Quirky Question # 182, Accommodating Employee with Disabled Spouse
Quirky Question # 182:
One of our management employees has a spouse with some serious health problems. Until recently, this fact has not had an impact on his job performance.
Of late, however, he has been distracted by his wife’s recurrent illness (understandably) and her associated treatment. This problem now is affecting his performance. After a failed attempt to work with him to improve his performance, we fired him. He now claims that we violated the ADA and that we were obligated to accommodate him with regard to his care for his wife. He also claims that we violated the “associational” discrimination component of the ADA.
Did we screw up by ending his employment relationship with our company?
Roy’s Analysis:
Last week, my former partner, David Lauth, now Senior Associate General Counsel at UnitedHealth Group, and I conducted the Eighth Annual Quirky Employment Questions seminar. We used Question 182 during the session. Interestingly, I asked for a show of hands to ascertain how many members of audience believed that their companies were obligated to accommodate, under the Americans with Disabilities Act (ADA), an employee whose spouse was disabled. About 50 percent of the audience thought their companies had a legal obligation to do so in the context of the fact pattern above. They were wrong.
Of course, this is not to suggest that companies should not offer an existing employee some accommodation to help him or her deal with a serious health condition of a family member. There may be compelling ethical or moral reasons to make that kind of accommodation. Moreover, there may be persuasive practical reasons to accommodate an employee confronting this type of family crisis. These include, without limitation: a) the company’s desire to retain a skilled employee, which may not be possible without some kind of accommodation; b) the appreciation that the employee will feel for the employer’s actions, strengthening the employee’s commitment and loyalty to the company; c) the good will the company’s actions may generate among the employee’s co-workers, who recognize how the accommodation was consistent with the articulated values of the company; d) the avoidance of the costs associated with having to replace a highly skilled employee (from hiring to training to retention); and e) the avoidance of the resentment other employees may feel when one of their colleagues is fired as the result of assisting an extremely ill family member.
But, is there a LEGAL OBLIGATION to accommodate, under the ADA, an existing employee who has to care for a disabled family member? Nope! Read more
Oracle: Non-Residents Performing Work in CA For CA Companies Are Covered by CA Overtime Provisions
[Readers: Set forth below is an analysis of the Sullivan v. Oracle Corporation decision. The analysis was prepared by my colleagues in our Southern California office, Gabrielle Wirth and Rachel Schumacher. If you have any questions, please don't hesitate to contact Gabrielle (949.932.3690) or Rachel (949.932.3668). Their emails are: wirth.gabrielle@dorsey.com and schumacher.rachel@dorsey.com. Regards, Roy]
Sullivan v. Oracle Corporation, et al.
June 30, 2011, in Sullivan v. Oracle Corporation, et al., the California Supreme Court decided three certified questions from the Ninth Circuit regarding work performed in the State of California by non-residents for California based employers.
Three plaintiffs worked as “Instructors” for Oracle Corporation from 2001 to 2004. As Instructors, Plaintiffs’ job was to train Oracle’s customers in the use of the company’s products. Two Plaintiffs resided in Colorado, one Plaintiff resided in Arizona. Plaintiffs worked mainly in their home states but also traveled to work in California and 19 other states. In the three-year period, one plaintiff worked approximately 74 days in California, one worked 110 days and one worked 20 days.
Plaintiffs sued Oracle under three theories. First, Plaintiffs claimed overtime compensation under the Labor Code for days longer than eight hours, and weeks longer than 40 hours, in which such work was performed entirely in California (See Lab. Code §§ 510 (a), 1194.) Second, Plaintiffs restated the same claim alleging violation of California’s overtime laws as one for restitution under the Unfair Competition Laws (“UCL”) (Bus. & Prof. Code § 17203.) Third, and again under the UCL, Plaintiffs claimed restitution in the amount of overtime compensation due under the federal Fair Labor Standards Act (“FLSA”) (29 U.S.C. § 207(a)) for weeks longer than 40 hours worked entirely in states other than in California. Read more
Chamber of Commerce v. Whiting: Impact on Employers
[Readers: Set forth below is an article on last month's Supreme Court decision, Chamber of Commerce v. Whiting, which examined the validity of Arizona's recently passed Legal Arizona Workers' Law. The article was written by my two colleagues, Ben Weeks and Marilyn Clark. If you have any questions about the article, don't hesitate to contact Ben at 612.492.6157, or via email at weeks.benjamin@dorsey.com, or Marilyn at 612.492.6885, or via email at clark.marilyn@dorsey.com.
I hope you find the article of use. Regards, Roy]
Chamber of Commerce v. Whiting
By: Ben Weeks and Marilyn Clark
On May 26, 2011, the Supreme Court issued its decision in Chamber of Commerce v. Whiting, No. 09-115. In the 5-3 decision, with Justice Kagan taking no part, the court affirmed the Ninth Circuit and held that the federal Immigration Reform and Control Act (“IRCA”) does not preempt provisions of Arizona’s Legal Arizona Workers Act (“LAWA”) imposing civil penalties on employers who hire unauthorized aliens and mandating that employers conduct employee background checks through E-Verify.
Background
The IRCA makes it “unlawful for a person or other entity . . . to hire, or to recruit or to refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U.S.C. § 1324a(h)(2). While the IRCA prohibits states from imposing “civil or criminal sanctions” on employers who hire unauthorized aliens, it does allow states to impose penalties through “licensing and similar laws.” LAWA does just that, allowing Arizona courts to suspend or revoke the licenses necessary to do business in that state if an employer intentionally or knowingly employs an unauthorized alien. Ariz. Rev. Stat. Ann. §§23–211, 212, 212.01.
The IRCA additionally requires employers to document via an Employment Eligibility Verification Form, commonly known as Form I-9, that all individuals hired after November 6, 1986, are either United States citizens or aliens properly authorized to work in this country. Read more
“Cat’s Paw Theory Endorsed by U.S. Supreme Court — Staub v. Proctor Hospital
[Readers: The following analysis of last month's Supreme Court decision in its "Cat's Paw" case was written by my colleague, Ben Weeks. If you have any questions about the case, don't hesitate to contact Ben at weeks.benjamin@dorsey.com, or at 612.492.6157. Additional information regarding Ben is available at: http://www.dorsey.com/people/detail.aspx?Attorney=4985&mode=full. We hope you find this analysis helpful. Regards, Roy]
On March 1, 2011, the Supreme Court decided the case of Staub v. Proctor Hospital, No. 09-400. The decision was unanimous (8-0), with Justice Scalia writing the Court’s opinion, Justice Alito writing a concurrence in which Justice Thomas joined, and Justice Kagan taking no part in the case. The Court overturned the Seventh Circuit, holding that a reasonable jury could have determined that Proctor Hospital violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), on a “cat’s paw” theory, when Proctor’s human resources director terminated Vincent Staub based in part on recommendations of Staub’s supervisors who allegedly were motivated by hostility towards Staub’s responsibilities as a member of the Army Reserves.
(For those unfamiliar with the “cat’s paw” concept, Justice Scalia explained: “The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990. See Shager v. Upjohn Co., 913 F. 2d 398, 405 (CA7). In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward.”)
Background Facts
Staub, a member of the United States Army Reserve, worked at Proctor Hospital as an angiography technician. Staub’s immediate supervisor, Janice Mulalley, and her supervisor, Michael Korenchuk, disliked Staub’s Reserve obligations, which included training one weekend per month plus two to three weeks each year, because the obligations made scheduling difficult. Both Mulally and Korenchuk made disparaging remarks regarding Staub’s Reserve service, and Mulally indicated to a co-worker that she wanted to “get rid of” Staub. Korenchuk was aware that Mulally was “out to get” Staub. Read more
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