Bay Area Employment Lawyer Blog

Hoffman Plastic Compounds, Inc. v NLRB, 535 U.S. 137 (2002) created some bad law when it held that the NLRB cannot award a backpay remedy to an employee who was not legally authorized to work in the United States. Since then employers have had a field day in cases where they "suspect" that an employee, seeking a remedy under the NLRB, federal or state anti-discrimination or civil rights acts, is not legally authorized to work. Employers have gone to town trying to uncover evidence that employees are not legally authorized to work, in the hope that they will, therefore, not have to pay up for their illegal actions.

Flaum Appetizing Corporation, 357 NLRB No. 162 (Dec. 30, 2011) has put some procedural brakes on this railroad by holding that an employer who claims that it need not pay backpay because an employee is not authorized to work in the U.S. cannot just make such a claim up out of whole cloth. The employer must set forth with specificity the basis for this defense. The opinion observed that, to hold otherwise, would permit a "fishing expedition", relying on its decision in Murcel Manufacturing Corp., 231 NLRB 632 (1977). The Board noted that allowing an employer to simply make a claim without any foundation makes no sense in light of the fact that it was the employer's obligation to begin with to verify the employability of the employee when hiring.

Flaum gives just a little love to undocumented employees, as well as to documented employees subject to stereotypes that they are not authorized to work because of their national origin.

Jody LeWitter
April 26, 2012

Nothing is more important than filing a lawsuit within the applicable time limits. One never knows if the court reviewing the case will be sympathetic to an argument that a claim wasn't really filed late. The best and only lesson to be learned is never to put yourself in the position to argue that a claim wasn't really late. This is unfortunately what Mr. Hall learned when filing a lawsuit for discrimination under the California Fair Employment & Housing Act (FEHA).
There are really two deadlines for filing a discrimination claim under the FEHA. First, an employee must exhaust his or her administrative remedies by filing a charge of discrimination with the California Department of Fair Employment & Housing (DFEH) (note: employees can usually file alternatively with the federal Equal Employment Opportunity Commission). The statute of limitations to file this administrative charge with the DFEH is generally one year (there is a 90 day extension for late discovered claims).
Then, if an employee then wants to sue in court, the DFEH will generally issue to the employee a right-to-sue letter. This letter itself gives the employee the second deadline, which is when the employee must file a complaint in court. According to the FEHA, an employee has one year to file in court (there are sometimes exceptions such as equitable tolling, continuing violations or some circumstances where one agency - either the DFEH or EEOC - is still investigations or conducting some further determinations or reviews).
The case of Hall v Goodwill Industries of Southern California (March 16, 2011) __ Cal.App.4th __, addresses the question of, for purposes of a right-to-sue letter: "one year from what?" The California Government Code, Section 12965(b) provides that the employee must file a lawsuit "within one year from the date of that notice."
Mr. Hall's right-to-sue letter was dated December 24, but received by his attorney on December 31. Hall filed his complaint in court one year before he received notice of the right-to-sue letter, but not one year before the right-to-sue letter was dated.
The Court held that the language of the FEHA (i.e. "within one year from the date of that notice") was unambiguous and clear, and therefore Mr. Hall should have known that he had to file one year from the date the letter was "issued" or dated, rather than one year from when he received it.
The statute refers to the right-to-sue letter as "the notice" and thus I can see how someone might determine that he or she has one year from the date of the letter. However, I can equally imagine that it would be easy to read the term "the notice" as when the employee received notice. Notice can be both sent and received, on different days, causing confusion. Certainly the drafters of this statute could have made the language more crystal clear. Calling less than pristine statutory language "unambiguous" is disingenuous and unfair. One would have hoped that a court would use the broader and more liberal interpretation of "the notice." That it did not is simply another warning to employees and their lawyers to get their cases filed, and remember that a court may also come up with an interpretation of the law that defies logic!

Jody LeWitterMay 1, 2011

Plaintiff's employment lawyers have long been urging the courts to follow an important reality in employment decisions: discriminating individuals can taint an employment decision made by someone else, and the fact that the final decision maker doesn't harbour a discriminatory motive himself/herself, should not protect the employer. Some courts have already accepted the "cat's paw" theory, including several circuit courts. See Long v. Eastfield College (5th Cir. 1996) 88 F.3d 300, 307; Kientzy v. McDonnell Douglas Corp. (8th Cir. 1993) 990 F.2d 1051, 1057; Kendrick v. Penske Transp. Services, Inc. (10th Cir. 2000) 220 F.3d 1220, 1231; Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398. California's courts of appeals have also adopted this standard. See, e.g., Reeves v. Safeway Stores, Inc. (2004) 121 Cal. App. 4th 95 (applying cat's paw theory in a retaliation claim).

In good news for employees, the U.S. Supreme Court has now adopted its own version of cat's paw liability in Staub v. Proctor (March 1, 2011)_--- S. Ct._----, 2011 WL 691244, making employer liability where discriminatory animus taints the ultimate decision to fire the law of the land.

The Supreme Court adopted this standard while interpreting USERRA (the Uniformed Services Employment & Reemployment Rights Act), which prohibits discrimination against an employee due to his or her military status or obligations. 38 U.S.C. § 4311. Like many statutes prohibiting employment discrimination, if the protected status (here military service) is a "motivating factor" in the decision to fire, the decision to fire is illegal.

Staub v Proctor applied the cat's paw theory of discrimination to a reservist fired because his immediate supervisors resented his military service, even though the final decision maker didn't herself harbour a discriminatory motive. The US Supreme Court held that, if the lower level supervisor's "acts are motivated by discrimination, and this is a proximate cause of the termination, the employer is liable." This was true because the human resources manager who made the decision relied upon the factual assertions presented by the discriminating supervisors.

Since the standard for discrimination claims is the same as above for Title VII and the California Fair Employment & Housing Act, there is every reason to assume that all courts will adopt this standard for claims brought under these acts. This obviates an unnecessary and unfair hurdle of proving that the ultimate decision maker is a bad actor and makes it more difficult for employers to hide behind a multilayered decision making process.

The Court did leave the door open for employers to insulate themselves from the discriminatory motive of non-decision makers by conducting a truly independent investigation which does not rely upon the discriminating supervisor's taint or fact finding. Thus, the glass here is half full and half empty. It helps employees by clarifying the standard, but provides employers with a way out, if they are scrupulous about their decision making and investigative processes.

Jody LeWitter
March 12, 2011