It's No Fairy Tale! 

The Cat's Paw strikes again! This issue was one of several highlights in last month's newsletter. We now have another related court decision so I think it's worth revisiting and hope you will agree.

Remember the fable, "The Monkey and the Cat?" The monkey convinces the cat to get chestnuts out of a fire, the cat burns his paw and the monkey eats the roasted chestnuts.  Now life imitates art.  In the last year we have seen three "Cat's Paw" cases, so named to refer to instances in which a manager uses someone else (human resources or another manager) as a pawn to get what the manager wants.

The first I saw was a case was pending before the U.S. Supreme Court under Title VII alleging that a manager with racial animus used a human resources manager who did not know the employee's race to fire an African-American employee.  That case settled prior to trial.

On March 1st of this year the U.S. Supreme Court did issue a decision on another cat's paw case heard under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The employee alleged that his immediate supervisor and his supervisor's supervisor were hostile to his military obligations and that served as the basis for more stringent reporting requirements and subsequent corrective action when he failed to meet those reporting requirements. The employer responded that it should not be liable because the vice president of human resources reviewed the employee's personnel filed, was the person who made the decision to terminate the employee and had no knowledge of the employee's military obligations. The Court held, "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employer action, then the employer is liable under USERRA." (Staub v. Proctor Hospital)

Nine days later, on March 10th a district court in Ohio ruled in a Family and Medical Leave Act (FMLA) cat's paw case. In this case two employees regularly failed to meet performance measures, were issued progressive, corrective action and were eventually terminated. During this same period of time covered by the corrective action, both employees had taken time off from work for FMLA-covered absences.  They alleged that they progressed more quickly through the corrective action process than other employees who also failed to meet performance measures but had not taken FMLA leave. The employer defended, in part, that the decision to terminated "resided higher in the supervisory chain" with individuals who had no knowledge of these two employees' use of FMLA leave.  To that defense, the court noted, "the animus of [managers] can be inferred upwards where it had the effect of coloring the various adverse employment action" and then referred to and cites the USERRA case described above. (Blount v. Ohio Bell Telephone Company)

Lessons Learned?  For business owners or managers, use a sounding board and have a second company representative such as an HR administrator, another manager or business owner review adverse employment actions before they are implemented.  That may help safeguard you should an employee (or applicant) allege that you were motivated by anything other than valid business objectives.  For HR professionals, share this example with your management team members to demonstrate why you repeatedly ask for documentation!  It is not because you doubt what a manager says but facts may exist of which you or that manager is not aware. Be sure to conduct a proactive, thorough and separate investigation or review of adverse employment actions prior to implementation. 

 Hot Hits!! Education Corner

Upcoming Public Speaking Engagements

Tuesday, May 17th, "Limiting Employment Liability: Tips, Tools and Pitfalls to Avoid" presented during a complimentary business breakfast hosted by Ceridian, Hunt Valley, MD.   To be followed by a sale and signing of Ms. Walters' new book, "From Hello to Goodbye: Proactive Tips for Maintaining Positive Employee Relations."  Now available!   

Wednesday, May 18th, "Legal Update," presented for the members and guests of the Maryland Association of Affirmative Action Officers (also followed by a book sale/signing!)  

SNEAK PEEK! June 7th - FiveL Company will again host the full-day seminar, "HR & the Law for Maryland Employers" in Columbia, MD. Pre-approved by HRCI for 6.5 credits; early bird pricing through May 15th.  

Visit the calendar of events for other upcoming public programs & client training!

NEXT WEBCAST: May 25th - "Shaping Public Policy: State Legislative Trends" 

Join this interactive webcast as we review the latest trends in state legislative as well as federal regulations that have the potential to impact employment policies, procedures and practices.  

This program is pre-approved by HRCI for 1.0 strategic credit hour. Click here to register.  

Use of this seal is not an endorsement by HRCI of the quality of the program. It means that this program has met HRCI's criteria to be pre-approved for recertification credit.

I-9 Final Rule - Same Rule

On April 14th the U.S. Citizenship and Immigration Services (USCIS) announced that the agency has adopted, without change, an interim rule regarding the I-9 process, which has been in effect since April 3, 2009.

Good News? There is nothing new that you need to do!

Proactive Tip? Ensure that you are in compliance with this final rule, which takes effect May 16, 2011.  Highlights include requirements that employers:

• not accept expired documents; and
• use the most current Form I-9 and listing of acceptable documents (two older versions are also permissible - Rev. 08/07/2009 or 02/02/2009). 

I find a handy resource is the "Handbook for Employers, Instructions for Completing the Form I-9."

Spotlight!

When was the last time you conducted staff harassment prevention training and they asked for "more of the same"?! That's what one staff wrote following a presentation of, "Maintaining an Inclusive Workplace," provided by FiveL Company.

 Here's what June Stacey, SPHR and Associate Vice President of Human Resources for United Educators wrote following their staff training programs provided by FiveL Company, "I think that each time Christine presents, the presentation becomes more specific to UE and our policies and culture. Christine has a great ability to listen openly to feedback and incorporate the feedback into future presentations." Thanks June! 

Contact FiveL Company today for more information about on-site or web-based training programs for your staff or management team members.

   This newsletter does not constitute the rendering of legal advice. For legal guidance on any particular issue(s) you should consult with your company's legal advisor or contact FiveL Company directly.