What does a cat’s paw have to do with managing human resources at your organization? Well, it begins with a fable about a monkey who persuades a cat to remove roasting chestnuts from smoldering embers. The cat burns his paw in the process and, you guessed it, the cat never gets his share of the chestnuts; the monkey runs off with them all.
So what does this 17th century French fable have to do with HR? The American Heritage Dictionary defines the term “cat’s paw” as a person used by another as a dupe or tool. Earlier this year, the Supreme Court issued a ruling based on cat’s paw theory. The case involved an army reservist, Vincent Staub, who worked at a hospital. After review of his personnel file, which included a prior disciplinary action, and after speaking with his supervisors, the HR Manager made the decision to terminate him.
Staub sued for wrongful discharge, contending that he had been fired in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) based on time off for military service. The Supreme Court agreed with Staub that the prior disciplinary action in his personnel file was based on biased reporting by his supervisors who maintained an anti-military mindset. They further determined that these biased supervisors had influenced the final decision-maker, the HR Manager, when they caused the prior discipline to be entered into Staub’s records. So, while the HR manager herself showed no anti-military bias, she relied on information that was discriminatory in making the decision to terminate. Under cat’s paw theory, she served as the dupe used by the supervisors.
So what does this mean for your organization? Well, clearly, one should tread carefully with all adverse employment actions. This means thorough fact-finding investigations. You shouldn’t necessarily take a supervisor’s word alone without further digging. Review all anti-harassment policies and all grievance and investigative procedures. Train supervisors in all your policies but particularly in nondiscrimination and anti-harassment. Supervisory performance reviews should reflect how well supervisors coach and develop staff. There are never full guarantees against lawsuits, but implementing sound policies, procedures and training will keep your risk to a minimum to keep you from getting burned!
As the saying goes, statistics don’t lie. Well, maybe they can be misleading at times. But the EEOC’s recent publishing of its chart of charges filed by individuals from 1997 through 2010 contains important information. The steepest rise in filings against employers has been in the area of retaliation. That’s when an organization is accused of taking an adverse employment action, such as termination or discipline, as a result of an employee’s engaging in a protected activity such as bringing a claim of harassment, taking protected leave or participating in protected union activity.
This doesn’t mean that you can’t legitimately fire someone who deserves it. But the message is this: before taking any sort of adverse action against an employee, make sure you have documentation that the action is related to job performance or some other legitimate reason. And if the employee has recently engaged in a protected activity, be sure to conduct a careful analysis of the circumstances and to have proper documentation to prove that your action is not retaliatory. Your best protection is to have a policy against retaliation, train your managers in it, communicate with an employee who brings forth a claim, and to document, document, document.
Subscribers to HRSentry have excellent resources at their fingertips 24/7! These include resources on retaliation, its prevention and proper termination to reduce your organization’s risk.
The U.S. Equal Employment Opportunity Commission (EEOC) today announced that 93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year (FY) 2009, the second highest level ever, and monetary relief obtained for victims totaled over $376 million.
The FY 2009 data show that private sector job bias charges (which include those filed against state and local governments) alleging discrimination based on disability, religion and/or national origin hit record highs. The number of charges alleging age-based discrimination reached the second-highest level ever. Continuing a decade-long trend, the most frequently filed charges with the EEOC in FY 2009 were charges alleging discrimination based on race (36%), retaliation (36%), and sex-based discrimination (30%). Multiple types of discrimination may be alleged in a single charge filing.
As popular social networking sites such as Facebook, Twitter, and Linkedin have become increasingly popular with a wide audience, the legal problems that come with them have been magnified. With all the personal information readily available, employers have begun using it to both check applicants out prior to hiring, as well as keeping tabs on current employees. These are two situations that have become increasingly worrisome for lawyers.
While there is no law against checking an applicants Facebook or Twitter account to see what kind of person they are, it opens the employer up to a number of discrimination claims. For example, if an employer finds information on a site like Facebook that reveals the applicant’s disability or medical condition, they are at risk for a discrimination claim. Similar to avoiding certain questions on applications, there are some things you don’t want to know.
The other major situation that arises with social networking sites is when employers/boss’s friend their subordinates. This opens up an employer to a host of discrimination issues including harassment, discrimination or wrongful termination, as well as complaints of favoritism if the boss friends only a select person or persons. One way to avoid this is to wait to be friended by the employee, let them initiate contact outside of work. As usual, the best way to avoid discrimination claims is to document everything and use only that information when deciding on terminations.
“For those employers who can’t resist peeking at social networking sites, Jennifer M. Bombard, an attorney with Morgan, Brown & Joy, recommends that they document a “legitimate business rationale for rejecting applicants” and make sure that hiring decisions are not motivated by information found on an applicant’s social networking site. Yet even with these prophylactic measures, a discrimination case will be “more problematic to defend” where an employer admits to having looked at a social networking site, says Gerald L. Maatman Jr., an attorney with Seyfarth Shaw.”
The general feeling within the legal community is that there is really no reason to checking applicants and employees online profiles. You can learn any information that is related to the job by conducting thorough interviews and background checks. Other things to keep in mind are that information found online can be taken out of context, could be false, and may not have any bearing whatsoever on the type of employee the person is.
Join us on September 17th, 2009 from 2:00 – 3:00 pm ETD for a webinar on Performance Management presented by Brenda Sabin. In this webinar you will learn the steps to create a performance management plan for your employees. Learn why having goals and setting the course for success are a necessary part of your employees career with your organization. Learn how a well drafted performance management plan is key to retaining the best of your employees as well as the key to weeding out the poor performers. To learn more click here.
