Friday, February 24, 2012


Cat's paw scratches employer


According to AdvisenFPN, the U.S. Supreme Court ruled that, basically stated, an employer is liable for managers' decisions when they affect personnel.

In the case, the plaintiff sued the employer under the United Services Employment and Reemployment Rights Act ("USERRA") alleging that the Human Resources VP who fired the employee was merely a "cat's paw" for the employee's direct supervisors.

The Court held that "if a supervisor performs an act motivated by animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under the USERRA." While the Court addressed the claim under USERRA, other courts have now addressed the issue in other legal contexts. (The full article can be read at

Attorney Ashley Kasarjian of Snell and Wilmer LLP wrote on her blog that "When terminating employees, companies need to take a close look at the process leading up to the termination. There are many questions companies should ask: Why is the company taking the adverse action? What led to that decision? Who provided input into this decision? Was any input from a supervisor “rubber-stamped” or did Human Resources conduct an independent investigation?" She noted that while independent investigation will not foreclose liability under the Cat’s Paw theory, it is among the most important things a company can do.

While the actions of managers and HR may be outside the scope for a business continuity practitioner, they are well within the purview of an enterprise risk management practitioner.

The "avoidance/mitigation" options must originate with the Legal staff - in-house or external. The practitioner's role is to raise the issue, assure that it is addressed, and also to assure that the company creates strong, unambiguous polices and procedures to prevent an occurrence.

Addressing the issue is similar to addressing sexual harassment issues; generally training to define what constitutes sexual harassment, providing a reporting procedure, and having consequences for violations; and again, having published policies and procedures.

Actions such as this "cat's paw," even if he organization prevails, are costly to

  • the bottom line
  • the organization's image
  • staff morale

All those "costs" are the result of threats either ignored, or more often, not considered by the risk management practitioner. The way to at least help assure that the "cost" threats, and similar threats, are identified is to involve all personnel in risk identification and avoidance/mitigation. No one person can think of everything, but together most threats can be identified.

According to Merriam-Webster ('s%20paw) a "cat's paw" is

  1. a light air that ruffles the surface of the water in irregular patches during a calm
  2. [from the fable of the monkey that used a cat's paw to draw chestnuts from the fire]: one used by another as a tool : dupe
  3. a hitch knot formed with two eyes for attaching a line to a hook — see knot illustration

No comments: