In a case appealed from the Fifth Circuit Court of Appeals, the U.S. Supreme Court held that a plaintiff in a Title VII retaliation case may prevail only when he shows that he would not have suffered an adverse employment action “but for” his engaging in protected activity.

In the first retaliation case in several years to side with the employer’s position, the Court held that Title VII retaliation plaintiff’s “claims must be proved by traditional principles of but-for causation.” Stated another way, the plaintiff must prove that the “unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” 

In reaching its conclusion, the majority noted the increase in retaliation filings and the importance of having a fair and responsible allocation of resources in the judicial and litigation systems. The Court also observed that setting a lower standard of causation could contribute to the increase in the filings of frivolous claims. Justice Kennedy described a hypothetical that one can image occurs all too frequently in reality.

Consider . . . the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation.

It is unlikely, however, that the more direct “but-for” standard of causation will stem the rising tide of retaliation charges.

You can read a full copy of the UTSW v. Nassar here [pdf].

Follow me on Twitter@RussellCawyer.

The U.S. Supreme Court adopted an objective test for determining an employee’s Title VII “supervisory status” in Vance v. Ball State University. The question in Vance was what level of authority must an individual have to qualify as a “supervisor” for purposes of Title VII vicarious liability. This is an important issue because the employee’s status often makes the difference in whether the employer is held liable for the actions of its employee that subject a co-worker to harassing conditions.

An employee who is subjected to a tangible employment action at the hands of a harassing supervisor can subject the employer to strict liability for the harassment. Conversely, an employee who is subjected to harassment by a non-supervisory co-worker can only establish employer liability only upon a showing of negligence (i.e., that the employer was aware of the harassment that was so severe or pervasive as to effect the terms and conditions of employment and failed to take prompt remedial action designed to end the harassment). Consequently, an accused harasser’s status as supervisor or non-supervisor has important ramifications for determining an employer’s liability for Title VII harassment.

The Court adopted the objective choice of the two tests advanced by the parties. In its opinion, the Court held that an alleged harasser is a “supervisor” for purposes of Title VII vicarious liability when the individual is empowered to take tangible employment actions against the victim. Stated another way, the “supervisor” must be empowered by the employer to hire, fire, discipline, promote, demote or transfer the victim. The authority to direct some of the employee’s daily work assignments or tasks, is not sufficient to render the harasser employee a supervisor. 

Having an objective test to apply and govern who is and is not a supervisor should make that determination readily apparent early in litigation and provide parties with more predicable outcomes in Title VII harassment cases. 

You can download a complete copy of Vance v. Ball State University here [pdf].

Follow me on Twitter @RussellCawyer.

In an issue of first impression in this Fifth Circuit, the Court held that a volunteer firefighter making a Title VII claim of sexual harassment is not an “employee” for purposes of the statute and therefore had no legal claim.

The case arose from a suit filed by a former firefighter for the Livingston Parish Fire Department who claimed that she was subjected to sexual harassment during her tenure with the Department. She filed a charge of discrimination and later sued. The Department defended on the grounds that as a volunteer, Juino was not an “employee” for purposes of Title VII and therefore could not bring a claim. Further, the Department argued that it was not an employer for Title VII purposes because while its membership roster had approximately 70 firefighters, only three were paid employees and therefore they lacked the threshold 15 employees for Title VII coverage.

The trial court accepted the Department’s arguments and entered judgment in its favor. On appeal, the Fifth Circuit Court of Appeals was charged with deciding, for the first time in the Circuit, whether (and under what circumstances) volunteers are employees for purposes of Title VII.

The Court analyzed the two different approaches considered by the Circuit Courts that have addressed the issue –the threshold remuneration test and the incidents of employment relationship test. In the threshold remuneration test adopted by most of the Courts addressing the issue, the plaintiff-volunteer must make a threshold showing that she received remuneration or some other significant indirect benefit. The incident of employment test, adopted by two Circuits, treats remuneration as merely one factor in determining the overall employment relationship rather than the dispositive factor. The Fifth Circuit concluded that the threshold remuneration test was the proper test to apply in its jurisdiction.

Having determined that the threshold remuneration test was the appropriate test to apply, the Court analyzed Juino’s engagement with the Department to determine whether she was an employee. Juino received $2 per emergency call; life insurance; uniform and badge; emergency response gear and training. During her engagement, Juino responded to 39 calls for a total monetary remuneration of $78. These benefits, the Court concluded, were merely incidental to her volunteer service for the District and unlike the significant indirect benefits received by volunteer firefighters in other reported cases where the volunteers were determined to be employees (e.g., retirement and pension benefits, life insurance, death benefits, disability insurance, tax exemptions for unreimbursed business expenses, scholarships for dependents, reduced rates on commemorative license plates and limited medical benefits). The Court concluded that Juino’s indirect benefits were too insignificant to pass the threshold remuneration test and she was therefore not an employee for Title VII purposes.

The takeaway from this opinion is not only that volunteers are not covered by the protections of Title VII, but unpaid interns are also likely not covered. Moreover, if volunteers and unpaid interns are not “employees” for Title VII purposes, it follows that their numbers should not be counted in determining “employer” coverage under the statute.  Moreover, given that other federal employment statutes use the same definition of "employee", it is likely that volunteers and unpaid interns lack coverage under those statutes as well.

You can read the entire opinion in Juino v. Livingston Parish Fire District No. 5 here.

Follow me on Twitter @RussellCawyer.

Last week the Fifth Circuit Court of Appeals reversed a widely criticized trial court ruling that had held that a discharge of an employee because she was lactating or expressing breast milk did not constitute unlawful sex discrimination.  In EEOC v. Houston Funding, II, Ltd, the employer moved for summary judgment arguing that Title VII did not cover “breast pump discrimination.”

The trial court granted the motion holding that “firing someone because of lactation or breast-pumping [was] not sex discrimination,” and lactation was not a related medical condition of pregnancy.  On appeal to the Fifth Circuit Court of Appeals, the Court reasoned that because lactation is a burden that is only imposed on women, an adverse employment action motivated by this factor would constitute unlawful sex discrimination.  The Court further confirmed that lactation is a related medical condition of pregnancy of the Pregnancy Discrimination Act.

You can read the full opinion here.

Follow me on Twitter @RussellCawyer.

One great thing about practicing in employment law and human relations is that things are never dull.  Remember the television show "Kids Say the Darndest Things"?  Well, employees (and contractors in this case) do the craziest things.  Advances in technology allow co-workers, customers and vendors to capture these lapses in judgment and post for public consumption.

Last week a Houston Astros’ stadium vendor learned this lesson the hard way. The vendor was captured on video taking his snow cone tray into the restroom stall.

https://youtube.com/watch?v=uogP9I79ulY

Shortly after the incident was reported to stadium management (and the media), the snow cone contractor was terminated.  There is no substitute for hiring employees with good judgment.

Follow me on Twitter @RussellCawyer.

In a recent case from the Fifth Circuit, the Court held that attorney’s fees are not recoverable for a prevailing plaintiff in a Title VII mixed-motive retaliation case. In Carter v. Luminant Power Serv. Co., the plaintiff employee brought a Title VII discrimination and retaliation claim alleging that he was disciplined for his complaints of racial discrimination. A jury found that Carter’s complaints motivated Luminant’s disciplinary decision but it also found that Luminant would have made the same decision despite Carter’s complaints (i.e., the mixed-motive defense). Because the plaintiff only prevailed on his retaliation claim and the employer established its mixed-motive defense, the trial court taxed court costs against the plaintiff employee. Carter asked the trial court to re-tax costs and attorney’s fees against Luminant because he prevailed on his retaliation claim.  The trial court refused to do so concluding that the fees and costs shifting provisions of Title VII do not apply to a mixed-motive retaliation claim. 

The Fifth Circuit affirmed the trial court reasoning that since the mixed-motive fee and cost shifting provisions of Title VII only refer to the prohibitions against Title VII discrimination action, those provisions did not apply to mixed-motive retaliation actions.

 

You can download a copy of Carter v. Luminant Power Serv. Co., here.

 

Follow me on Twitter @RussellCawyer

Texas has a reputation for being business friendly.  More often than not, the Texas Legislature refrains from passing legislation providing solutions for nonexistent problems.  However, a recent bill, passed by the Texas House and submitted to the Texas Senate would prohibit Texas employers from requesting social media user names and passwords from applicants and employees, addresses a problem that, in my opinion, does not exist in the Texas workplace. 

HB 318 makes it an unlawful employment practice for an employer to require or request an employee or applicant disclose a user name, password, or other means for accessing a personal account of the employee or applicant, including a personal e-mail account or a social networking website account or profile.  The bill does not prohibit employers from enforcing policies regarding the appropriate use of employer-supplied devices or use of devices (employer provided or personal) during work hours; from accessing publicly available or lawfully obtained information or monitoring employee usage of employer-provided devices.  The bill exempts law enforcement agencies, employees of financial services companies and situations where the employer and employee enter into a contractual agreement where the employees consents to the disclosure of a user name and password of a personal social media account.  

HB 318 appears to create a new private right of action against Texas employers because it makes the request or requirement a prohibited practice under the Labor Code akin to discriminating against applicants or employees on the basis of race, sex, religion, age and other prohibited categories.  HB 318’s amendment of the Labor Code would allow new causes of action to be filed against employers who violate the prohibition.  Moreover, HB 318 contains no exception for employers to require employees who are the subject of an internal investigation of harassment, violation of law or company policy to provide user names and passwords to social media accounts that are the subject of an investigation.  The bill also precludes employers from requesting or obtaining user names or passwords for social media accounts that are accessed by the employee through employer-owned or provided electronic devices.

In nearly 18 years of practice, I have never had an employer ask if it was legal to request or require an employee or applicant to provide a social media password.  Not only have I never had an employer ask the question, I have never been involved in any case where the employer requested an applicant or employee to provide a social media password.  In the Business and Industry Committee testimony on HB 318, there was no evidence of the prevalance of Texas employers who request or require employee user names or passwords of social media accounts –only anecdotal, second-hand accounts of such instances.

Can a Texas employer presently ask that applicants and employee provide social media user names and passwords?  Absolutely.  Can Texas employer currently separate an employee who refuses to provide those passwords?  Absolutely.  Can an employee resign who do not want to provide his or her passwords?  Absolutely.  But are Texas employers doing this in practice? Not in my experience.  

House Bill 318 attempts to remedy a problem that does not really exist.  It should continue to do so without HB 318. You can review the text of HB 381 here.

Follow me on Twitter @RussellCawyer.

In what could become an important case for employers faced with FLSA wage and hour collective actions, the United States Supreme Court held that a named plaintiff who rejects an offer of judgment for full relief before any other party joins the action cannot continue to pursue the claims on behalf of the putative class because the dispute between the named plaintiff and employer has become moot.

In Genesis Healthcare, the plaintiff was a registered nurse who brought suit on her behalf, and on behalf of all similarly situated individuals, alleging that her health care employer automatically deducted a thirty minute meal period even though the nurses were regularly required to work through their lunches or perform compensable work during those breaks. When served with the action, the employer made a offer of judgment (i.e., offering to let the court enter judgment against it) for the full amount of the plaintiff’s individual claim ($7,500) plus reasonable and necessary attorney’s fees as determined by the Court.  When the plaintiff did not respond to the offer, the employer moved to dismiss the action arguing to the court that the controversy was moot (i.e., there was not longer an actual dispute because the employer conceded judgment).  The trial court determined that since the offer fully compensated the plaintiff for her damages and no other party had joined the lawsuit as a party plaintiff, the dispute was moot and dismissed it.

The Third Circuit Court of Appeal reversed the trial court’s judgment observing that while the named plaintiff’s individual claims were moot, her collective action was not and that allowing an employer to strategically pick off named plaintiffs with strategic settlement offers would frustrate the goals of collective actions.

The U.S. Supreme Court majority held that when a named plaintiff rejects (or in this case ignores) an offer of judgment that offers full relief and no other potential plaintiff has joined the FLSA collective action, the dispute is moot and must be dismissed. In an unconventionally written dissent, Justice Kagan (joined by three Justices) criticized the majority opinion for side-stepping the real issue in the case.  In Justice Kagan’s opinion, she explained that the real issue in the case was whether an ignored or rejected offer of judgment moots a controversy.

Because the parties stipulated (and the Court assumed) that the offer of judgment constituted full relief thereby mooting the named plaintiff’s individual claim, there are several issues that will need to be resolved by the lower courts.  For example, unanswered by Genesis Healthcare is what offer constitutes an offer of full relief in the context of a putative FLSA collective action.  Also unresolved is an apparent circuit split as to whether an unaccepted offer of judgment moots an entire dispute in such a case.

You can download a complete copy of Genesis Healthcare Corp. v. Symczyk here.

Follow me on Twitter@RussellCawyer.

Texas law only recognizes a whistleblowing cause of action for public employees that, in good faith, report violations of law to an appropriate law enforcement authority. In two cases reported last month, the Supreme Court of Texas clarified that internal reports of violations of law, even if made in good faith, to officials having purely internal authority to regulate the employer’s own compliance with the law, as opposed to the authority to enforce, investigate or prosecute violations of law against third parties, do not qualify as protected whistleblowing reports.

In UTSWMC v. Gentilello, the plaintiff claimed that he was terminated for complaining to management that trauma residents at Parkland Hospital (in Dallas) were treating and operating on patients without the supervision of an attending physicians in violation of Medicare and Medicaid requirements. In TAMUK v. Moreno, the plaintiff claimed that she was terminated because she reported to the TAMUK president that her supervisor’s daughter was receiving in-state tuition in violation of state law. 

In both cases, the individuals to whom the plaintiffs reported only had authority to oversee the employer’s (and its employees) own compliance with various laws and regulations. This authority, the Court held, did not amount to the power to regulate and enforce the law. A report is only a protected whistleblowing report where it is made to an entity that has the “authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, of must have authority to promulgate regulations governing the conduct of such third parties.”

You can download Texas A&M University –Kingsville v. Moreno here.

You can also download University of Texas Southwestern Medical Center at Dallas v. Gentillo here.

Follow me on Twitter@RussellCawyer.

Yesterday the Fifth Circuit Court of Appeals affirmed, a judgment for an employer who was sued by its employees for travel time that the employer did not include as working time.   Its a complicated set of facts and you can read Griffen v. S&B Engineers and Constructors, Ltd. here if you’re interested.  While most employers don’t have travel time issues nearly as complex as the Griffen case, it provides sufficient reason to review the general rules about when travel time constitutes working, compensable time for nonexempt employees. There are essentially four general rules:

  1. Regular Home-to-Work: Regular home-to-work commuting time is not compensable. Consequently, an employee’s travel time from the employee’s home to her regular place of business does not count as hours worked. However, where the employee’s workday begins and ends at home such as where the employee drives co-workers to work in a company-owned vehicle at the employer’s request or where the employee has to run errands on behalf of the employer on the way to work, such time might be compensable if it integral and indispensable part of the employee’s principal duties; is required by the employee and/or is more than de minimus.
  2. Special One-Day Assignment: Travel time spent in the commute to a one-day (non-overnight) special assignment in another city, away from the normal fixed location of work, may be considered working time. The employer should include the commuting time less that amount of time the employee normally spends commuting from home to the regular fixed location of work. 
  3. Travel as Part of the Job: Travel time for employee who must travel as part of their regular, principal duties are included as hours worked. For example, the hours that an employee who is tasked with visiting different locations of the employer or customers during the course of the business day, spends commuting between those locations are hours worked. The employer is generally permitted to deduct from those hours worked an amount of time equal to the average normal commute time immediately prior to the first visit of the day and after the last visit of the day 
  4. Overnight Travel: Travel time that takes an employee away from home overnight is called travel away from home. Travel time occurring during the employee’s regular work hours, whether on regular workdays or corresponding not work days is compensable. Travel time occurring outside those regular working hours is not compensable unless the employee is required to perform work while traveling. The DOL’s current enforcement position is to ignore travel time occurring outside the normal working hours as a passenger on a plane, train, automobile, boat or bus as working time unless the employee is required to work while engaged in such travel.

Follow me on Twitter @RussellCawyer.