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SHRM Newsletter: Verbal Complaint Can Be Basis For Retaliation Claim




April 18, 2011

This is Utah SHRM Legal-mail no. 2011-7 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).







VERBAL COMPLAINT CAN BE BASIS FOR RETALIATION CLAIM:  The Supreme Court has made its voice heard on a couple of important employment law issues.  First, overturning the decisions of other lower courts, the Court has ruled that an employee who makes an oral complaint is protected by the anti-retaliation provisions of the Fair Labor Standards Act (FLSA).  The dispute arose because the applicable FLSA language referred to a complaint being “filed” and lower courts concluded this meant a complaint had to be in writing.  However, the Supreme Court instead noted that the statute also protects “any complaint” and thus should not be read so narrowly to only include written complaints.  As a result of this decision, employers should ensure that supervisors know that oral- as well as written- employee complaints are protected and that all such complaints should be conveyed to HR when made.

WATCH OUT FOR “CAT’S PAW” IN JOB DECISIONS: The Supreme Court also ruled that employers can possibly be liable in what are called “cat’s paw” cases.  A “cat’s paw” case involves one where an allegedly-biased person does not make the employment decision at issue, but somehow influences or manipulates it.  Another legal update explained it this way: “The ‘cat’s paw’ principle derives its name from a fable in which a monkey convinces a gullible cat to pull chestnuts from a hot fire. The cat snatches the chestnuts from the fire, each time singeing his paw, only to have the monkey eat all the chestnuts. Today, the term ‘cat’s paw’ is generally used to describe a person who is unwittingly manipulated by another to accomplish his purposes.” The underlying case involved a claim for alleged anti-military bias under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The Court held that in such cases if a supervisor commits an act based on bias and that act causes injury to the employee, the employee can sue based on the injury.  The clear implication for employers is that they will need to ensure that their decisions are not (and do not appear to be) manipulated by persons who have indicated they have an illegal bias.  Again, as explained by another legal commentator, employers must avoid the “situation in which a biased lower level supervisor, who lacks decision-making power, uses the formal decision maker in a deliberate scheme to trigger a discriminatory employment action.” 

COURT ALLOWS HARASSMENT CLAIM BY NONEMPLOYEE:  The Tenth Circuit Court of Appeals (which governs Utah and other Western states) recently reversed a trial court’s decision to dismiss a claim of employment harassment where the conduct at issue originated not from an employee, but a nonemployee.  The case involved a plaintiff who worked for a nursing home.  She filed a lawsuit against her employer claiming she was constantly subjected to groping and verbal sexual abuse from one particular resident.  The employer responded by confronting the resident and requiring that two staff members be present at all times when dealing with him.  However, the abuse continued and culminated in a confrontation in which the employee called the resident a name.  The employer then fired the employee and the trial court dismissed the harassment and retaliation claims that followed.  The Tenth Circuit reversed, however, finding that there was enough evidence to allow a jury to decide if the employer knew enough about the resident’s misbehavior and whether it responded sufficiently to stop it.  This case is a timely reminder that nonemployees such as customers, clients, vendors can all be sources of harassment against employees.  An employer’s policy must consider and deal with such possible claims to minimize its legal risk.

TIPS ON TIPS: New FLSA regulations should help educate employers as to the proper use of the tip credit, a legal device that allows certain tipped employees to be paid less than the minimum wage. You can read a good summary of the same here:  Some of the highlights of the new regulation include that an employee must be given at least verbal notice of an employer’s intent to use the tip credit and that the maximum new federal tip credit is $5.12 per hour, which is the minimum wage ($7.25) minus the required minimum cash wage ($2.13).


ADAAA AND THE NINE RULES OF CONSTRUCTION:  In the last update, using the EEOC’s own words, I summarized the significant points of the new EEOC regulations.  One of the most important aspects of the new regulations is that they adopt nine express “rules of construction” for courts to use when interpreting claims under the ADAAA.  It may be helpful for employers to know these specific new rules now too, so here they are: (1) "substantially limits" should be construed broadly in favor of concluding that someone has a disability and thus is covered by the ADAAA, i.e. it is not meant to be a demanding standard; (2) whereas an impairment need not prevent, or significantly or severely restrict, an individual from performing a major life activity in order to be considered "substantially limiting," not every impairment will constitute a disability; (3) the courts are not to get bogged down in whether an impairment is substantially limiting; (4) "substantially limits" should now be interpreted and applied using an individualized assessment that is broader than the standard applied prior to the ADAAA; (5) an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population, a comparison that usually will not require scientific, medical or statistical analysis; (6) except with eyeglasses or contact lenses, the determination of whether a disability exists is to be made without regard to the effects of mitigating measures; (7) an impairment that is episodic, in remission, or could recur is a disability if it would substantially limit a major life activity when active; (8) an impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment; and (9) an impairment lasting or expected to last fewer than six months can be substantially limiting, but short-term illnesses lasting only a few days or weeks are likely not substantially limiting.  Here are links to a couple of good discussions about these nine rules: and

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Phone: 801-534-7315

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.