Employment Law This Week®: Retaliation Guidance, Class Action Waivers, "Persuader Rule" Injunction, "Cat's Paw" Doctrine

(1) EEOC Releases Retaliation Guidance

Our top story: On August 29, 2016, the Equal Employment Opportunity Commission (EEOC) issued new guidance on workplace retaliation. The EEOC’s final guidance on retaliation includes concrete examples of retaliation issues that the courts have largely agreed upon, as well as expanded definitions of “adverse action” and “causal connection.” The guidance also describes “promising practices” for reducing the possibility of retaliation, including anti-retaliation training and proactive follow-up with potential targets. Retaliation has become the most frequent form of employment claim across business sectors. The percentage of EEOC charges in this area has almost doubled since the last guidance was issued. David Marden, from Epstein Becker Green, has more.

“There are three well-established elements of a retaliation claim: one, protected activity; two, materially adverse action; and three, causal connection. And while the EEOC's new retaliation guidance doesn’t change any of these elements of a retaliation claim, a key takeaway is that the EEOC has adopted a very broad view of each of these elements. . . . The Commission also noted that there are cases where the lower courts have not consistently applied the law, or the EEOC’s interpretation of the law differs in some respect. And in those situations, the guidance sets forth the EEOC’s policy in more detail and explains its analysis.” For more information, click here: http://bit.ly/2cb6UOY

(2) Circuits Split on Class Action Waivers

The split among the circuits widens on class action waivers in arbitration agreements. The U.S. Court of Appeals for the Ninth Circuit recently found a mandatory arbitration agreement invalid because its waiver of class actions interfered with employees’ rights to engage in concerted activity with coworkers. The Ninth Circuit held that the waiver constitutes an unfair labor practice that violates employees’ rights under Section 7 of the National Labor Relations Act (NLRA). Just days later, the Second Circuit ruled in another case that class action arbitration waivers do not violate the NLRA and canbe enforced. This is an issue that will likely head to the Supreme Court of the United States in the near future.

(3) DOL Appeals “Persuader Rule” Injunction

In the Fifth Circuit, the U.S. Department of Labor (DOL) is appealing an injunction of its amended “Persuader Rule.” Issued in March, the rule expands reporting requirements for management and consultants—including lawyers—regarding union organizing and related advice. Three lawsuits challenging the amended rule were brought in federal courts before a Texas federal district court enjoined enforcement nationwide. Despite the DOL appeal, the injunction stays in effect until further notice. Therefore, reporting requirements for “persuader activity” remain as they were before the new rule was issued. For more on this case, click here: http://bit.ly/2cb6U1J

(4) Second Circuit Extends “Cat’s Paw” Doctrine

An emergency medical technician complained to her employer after a male coworker sent her a sexually explicit text message. The coworker then manipulated his phone to make it appear that he had a consensual relationship with the female employee and said that he was the one being harassed. The employer took his word for it, refusing to inspect the technician’s phone before firing the female employee. She then sued the company, relying on the “cat’s paw” doctrine. That doctrine holds employers liable for actions they are tricked or manipulated into taking by employees who have discriminatory or retaliatory intentions. Even though the male coworker was not a supervisor, the Second Circuit held that the employer’s negligence in refusing to look at the plaintiff’s phone made the company liable for the retaliatory actions of her coworker. For more information, click here: http://bit.ly/2coREBH

(5) Tip of the Week

Hayes MacArthur, Principal at EisnerAmper LLP, is here with some advice on alternative work arrangements.

“Providing flexibility on where and when an employee gets work done is a trendy conversation right now, and companies have the opportunity to use workplace flexibility as a strategic advantage. . . . Implementing or redesigning a formal alternative or tailored work arrangement program requires more conversation than form, especially around communication. To the extent the employer and the employee can work together to set expectations, the arrangement has a much better chance of being successful. . . . Since it would be difficult for an organization to provide flexibility for every position, having a detailed and well-communicated policy that outlines eligibility, process, and expectations is very important.”

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