Survey of 2016 Developments in Labor and Employment Law, 061818 CTBJ, 91 CBJ 34
| Author | By Jeffrey J. Mirman |
| Position | 91 CBJ 34 |
By Jeffrey J. Mirman[*]
Since the last survey there has been a substantial increase in the number of cases filed claiming discrimination or failing to pay wages. For example, employment charges filed with the Connecticut Commission on Human Rights and Opportunities increased by more than 7% for the fiscal year ending June 30, 2016, over the prior year. Increases in the types of discrimination charged included physical disability, race, and age.
I. Supreme Court Cases
The term ending in June, 2016, did not produce any major employment decisions from the Court. Nevertheless, there were some highlights.
In CRST Van Expedited, Inc. v. Equal Employment Opportunity Commission,1 the Court concluded that a defendant was entitled to attorneys' fees in a Title VII action even when there was not final judgment in its favor on the merits of the plaintiffs claim. The EEOC brought suit on behalf of a named plaintiff and a group of employees under Section 706 of Title VII without obtaining class certification. The Commission sought to enjoin the company from permitting a sexually hostile and offensive work environment. After a series of motions, the District Court dismissed the EEOC's complaint, finding the allegations of pattern or practice insufficient, and that the EEOC failed to satisfy its pre-suit obligation to seek conciliation.2 The Company sought and obtained an award of attorneys' fees. The Supreme Court held that attorneys' fees may be awarded to a defendant who prevails, although not on the merits of the underlying claim, because one of the purposes of such an award is "to deter the bringing of lawsuit without foundation", and when a plaintiffs claim was "frivolous, unreasonable, or groundless.'"3
In Green v. Brennan,4 a 7-1 majority ruled that the limitation period for filing a Title VII charge of discriminatory constructive discharge begins when the employee feels forced to resign and actually resigns, rather than the last act of discrimination. The employee, a postmaster in Colorado, was passed over for a promotion. He complained of race discrimination with the post office's equal employment opportunity office. Thereafter his supervisors accused him of misconduct, prompting an investigation and his reassignment to off-duty status with no pay, and finally his being given the choice of a demotion to another location or to retire. The plaintiff chose to retire, and then filed his charge. His charge, however, was made more than 45 days (the federal employee time limit) after the employer's last action against him, the delivery of the ultimatum.
In holding that the limitations period began to run upon resignation, the Court concluded that the standard rule requires the Court to determine what a "complete and present cause of action" is."5 A constructive discharge occurs when "working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign."6 A plaintiff must show both that working conditions became so intolerable that he felt compelled to resign and that he actually did resign. It is only after both elements have occurred that an employee's cause of action accrues and he can bring suit. Since an ordinary discharge claim accrues when the employee is fired, it makes sense to begin to run the clock on a constructive discharge claim when the employee resigns, or is constructively fired.7 Interesting opinions by Justice Alito (concurring)8 and Thomas (dissenting)[9] parse the logical issues surrounding the nature of constructive discharge and provide fodder for future debate surrounding such claims.
In Heffernan v. City of Pater son,10 the Court ruled, 6-3, that a police officer could pursue a claim under 42 U.S.C. Section 1983 that he was demoted because of his perceived politics, in violation of the First Amendment. The plaintiff police officer, at his mother's[11] request, picked up a sign in support of a candidate for mayor of Paterson. Other members of the police force saw the plaintiff speaking to the candidate's campaign staff, and it was assumed, wrongly, that he was involved in the campaign. The next day he was demoted from detective to patrol officer. Reminding readers that the Constitution prohibits government employers from discharging or demoting employees because the employee supports a particular political candidate, the Court assumed that the plaintiffs supervisors thought he had engaged in activities that could not be constitutionally prohibited or punished.12 Notwithstanding that the plaintiff was not engaged in political activity, the Court reasoned: "[w]hen an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983 - even if, as here, the employer makes a factual mistake about the employee's behavior."13 Justice Thomas, joined by Justice Alito in dissent, reasoned that the fact that the plaintiff admittedly had not exercised any First Amendment right should preclude his suit for having been deprived of such a right.14
In Encino Motorcars, LLC v. Navarro,[15] the Court declined to give deference to the Department of Labor's change in policy regarding whether automobile dealer service advisors were included within salesmen, partsmen or mechanics and thus exempt from the overtime requirements of the Fair Labor Standards Act. In 2011 the Department changed its long-standing interpretation of 29 U.S.C. Section 213(b)(10) to conclude that service advisors were not exempt. However, the Court found that the Department did not follow the two-step analysis for promulgating a regulation interpreting a statute it enforces, as required by Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc.16 That test required the Court to determine if the law was unambiguous. If ambiguous, then the Court must defer to any agency interpretation that is "reasonable."17 In this case the Court found that the Department failed to give adequate reasons for its decision, and given the agency's change in interpretation of a longstanding regulation it could not stand.18 The case was remanded to the Ninth Circuit. In dissent,19 Justice Thomas joined, by Justice Alito, agreed the regulation deserved no deference but would have gone further to answer the statutory interpretation question and rule that service advisors are covered by the exemption.
II. Second Circuit Court of Appeals and Connecticut District Court Cases
A. Second Circuit Cases
In last year's Survey we discussed at some length the Second Circuit's decision in Glatt v. Fox Searchlight Pictures,20 in which the Court established the test for determining whether interns should be considered employees, and therefore paid for their time.[21] In 2016 the court amended and superseded that decision.[22] The court held that the primary consideration of whether the intern should be considered an employee is whether the intern or the employer was the primary beneficiary of the working relationship. While leaving intact the seven-part test we discussed last year, the court added a new consideration:
The intern-employer relationship should not be analyzed in the same manner as the standard employer-employee relationship because the intern enters into the relationship with the expectation of receiving educational or vocational benefits that are not necessarily expected with all forms of employment (though such benefits may be a product of experience on the job).23
Courts may, therefore, consider evidence about an internship program as a whole rather than focusing solely on the individual experience of each intern. The court made clear that its approach applies only to bona fide internships, where there is no expectation of compensation and the training is similar to that provided in an education environment, and not to other training programs.24
In Graziadio v. Culinary Institute of America,25 the Second Circuit adopted the economic-reality test used to analyze individual liability under the Fair Labor Standards Act to claims under the Family and Medical Leave Act.26 In determining whether an individual is an employer, the court will consider whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.27
In the FMLA context, a court must determine "whether the putative employer 'controlled in whole or in part plaintiffs rights under the FMLA.'"[28] In concluding that an individal supervisor may be considered an employer under the FMLA, the court found the following factors important:
The supervisor held substantial influence over whether to discharge the plaintiff;
The supervisor exercised control over the plaintiffs schedule and conditions of employment, including her return from FMLA leave;
The supervisor controlled the administration of the FMLA leave.29
In Vasquez v. Empress Ambulance Service, Inc., we learned from the Second Circuit that it has finally accepted the "cat's paw" theory of liability against negligent employers influenced by nonsupervisory employees' unlawful motives in employment retaliation cases. The phrase comes from an Aesop fable in which a monkey persuades a cat to pull chestnuts from a fire so that they might share them, but the monkey eats all of the chestnuts before the cat has an opportunity to eat even one, leaving the cat with a burnt paw. "[T]he 'cat's paw' metaphor...
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