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US Supreme Court: Preview of Employment Law Cases
September 30, 2005 by Ross Runkel at LawMemo
Employment Law cases I'm watching as the United States Supreme Court begins its 2005-2006 Term of Court:
IBP, Inc v. Alvarez; Tum v. Barber Foods
Issue: Is time spent walking to the worksite after donning protective clothing compensable under the FLSA and Portal-to-Portal Act?
Decisions below: Alvarez v. IBP, Inc. (9th Cir 08/05/2003); Tum v. Barber Foods (1st Cir 03/10/2004)
Summary and briefs
Argument date: October 3, 2005
Garcetti v. Ceballos
Issue: Does the 1st amendment protect a deputy district attorney who wrote a memo to his supervisor alleging that a deputy sheriff lied on a search warrant application?
Decision below: Ceballos v. Garcetti (9th Cir 03/22/2004)
Summary and briefs
Argument date: October 12, 2005
Whitman v. Department of Transportation
Issue: Does Civil Service Reform Act confer federal court jurisdiction?
Decision below: Whitman v. Department of Transportation (9th Cir 08/30/2004)
Summary and briefs
Argument date: December 5, 2005
Rumsfeld v. Forum For Academic and Institutional Rights
Issue: Does the 1st amendment protect schools from losing federal funds when they refuse to allow military recruiters? (The Solomon Amendment case)
Decision below: Forum For Academic and Institutional Rights v. Rumsfeld (3rd Cir 11/29/2004)
Summary and briefs
Argument date: December 6, 2005
Domino's Pizza v. McDonald
Issue: Does individual who was not a contracting party have standing to sue under 42 USC 1981?
Decision below: McDonald v. Domino's Pizza (9th Cir 06/18/2004) (unpublished)
Summary and briefs
Argument date: December 6, 2005
Arbaugh v. Y & H Corp
Issue: Is Title VII's 15-employee threshold jurisdictional?
Decision below: Arbaugh v. Y&H Corp (5th Cir 08/02/2004)
Summary and briefs
Argument date: Postponed until January 2006
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US Supreme Court argument on whether walking and waiting time are compensable
September 30, 2005 by Ross Runkel at LawMemo
Update: Supreme Court decided this case November 8, 2005.
IBP, Inc v. Alvarez; Tum v. Barber Foods
Oral Argument: October 3, 2005
Decisions below: Alvarez v. IBP, Inc. (9th Cir 08/05/2003); Tum v. Barber Foods (1st Cir 03/10/2004)
Briefs
In these consolidated cases, the Circuit Courts ruled that the employers violated the Fair Labor Standards Act (FLSA) by not paying for time employees spent donning and doffing specialized protective clothing before beginning work, at the end of work, and during unpaid lunch break.
The Supreme Court will be reviewing a narrower issue: whether waiting and walking time is compensable. Waiting time is time waiting in line to punch a time clock or to acquire protective clothing. Walking time is the time spent walking from the place where the gear is donned to the place where the work is done, and back.
- The 9th Circuit held that employees should be paid for all the time from the moment they began donning the protective gear at the beginning of the day until they doffed it at the end of the day, including the time spent walking to and from the locker room and the work station, and ruled that this time was not excluded as preliminary or postliminary activities under the Portal-to-Portal Act.
- The 1st Circuit held that the Portal-to-Portal Act specifically excluded this "walking time" from being compensable.
My view: Too close to call.
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Argument audio: Who decides unconscionability?
September 29, 2005 by Ross Runkel at LawMemo
Listen to the oral argument of the 9th Circuit (en banc) in Nagrampa v. MailCoups, Inc.
The 9th Circuit reheard en banc (11 judges!) on 09/27/2005 the issue of whether it was for an arbitrator, rather than a court, to decide whether a contact is unconscionable. Nagrampa v. MailCoups, Inc (9th Cir 03/21/2005) was the original 3-judge panel decision holding that the arbitrator decides this question.
In Nagrampa there was a francise agreement which contained an arbitration agreement within it. Nagrampa claimed that both the arbitration agreement and the whole agreement were unconscionable. The 9th Circuit panel applied Prima Paint v. Flood & Conklin, 388 US 395 (1967), and made its own decision on the unconsionability of the arbitration agreement, but held that it was for the arbitrator to decide whether the contract as a whole was unconscionable.
That decision was withdrawn pending decision of the en banc court.
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EEOC's retiree health care regulation upheld
September 29, 2005 by Ross Runkel at LawMemo
In a dramatic reversal, a federal judge now upholds the EEOC's regulation that allows employers to reduce the level of benefits for retirees as soon as they become eligible for Medicare.
In March a judge in the Eastern District of Pennsylvania held that the EEOC's regulation could not be enforced because it conflicted with a decision from the 3rd Circuit. Then the US Supreme Court decided National Cable and Telecommunications Association v. Brand X Internet Services (06/27/2005) which re-explained [that's my word] the level of deference a court must give to an administrative agency's regulations.
So the judge reconsidered her previous decision in light of Brand X, and came out in favor of the EEOC.
The case: AARP v. EEOC (E.D. Pa. 09/27/2005).
My view: Nice going judge.
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Monocular vision was a disability
September 25, 2005 by Ross Runkel at LawMemo
Employees with monocular vision were denied driving positions with UPS because the employer's "vision protocol" required some central vision and some peripheral vision in each eye.
The 9th Circuit decided that (1) the employees were disabled under California's Fair Employment and Housing Act (FEHA) [although not under the federal ADA], but (2) the employer satisfied the FEHA's safety-of-others defense. EEOC v. United Parcel Service (9th Cir 09/15/2005).
The court noted that while the ADA required that the employee's condition substantially limit a major life activity, the FEHA required only that the employee's condition limit a major life activity.
(1) With respect to the major life activity of seeing, the court found that the trial court erred by comparing monocular vision employees with farsighted employees. Under the FEHA the court found that a limitation in vision was sufficient. With respect to the major life activity of working, the court pointed out that the FEHA expressly recognized working as a major life activity and further provided that this was so regardless of whether the actual or perceived working limitation implicated a particular employment or a class or broad range of employments. The court found the employees demonstrated that they were limited in working as commercial delivery drivers, not only because they were excluded from working as full-time package car drivers for the employer, but also because they were excluded from any commercial driving position that required Department of Transportation (DOT) or state certification.
(2) The court was persuaded that the employer prevailed on its safety-of-others defense (Cal Gov't Code Section 12940(a)(1)) because the employer's vision protocol rested on objective and statistical evidence that monocular drivers were involved in somewhat more accidents than binocular drivers, because the risk of harm to others was high, because the employer's standard did not categorically exclude monocular individuals from working as full-time package car drivers, and because the application of the vision protocol was individualized to each employee and applicant.
My view: A reminder that --
- State statutes often have more expansive definitions of "disability" than the federal ADA.
- Employers who do their homework can successfully defend on the ground that a disabled person presents a threat to the safety of others.
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Employers can use state funds to fight unions
September 06, 2005 by Ross Runkel at LawMemo
California ties a string to state-funds grants over $10,000: Private employers can't use the money "to assist, promote, or deter union organizing."
The 9th Circuit, after a rehearing, ruled that the NLRA preempted the statute. Chamber of Commerce of the United States v. Lockyer (9th Cir 09/06/2005) (2-1).
California Gov't Code Section 16645.2(a) bars private employers who are "recipient[s] of a grant of state funds" from "us[ing] the funds to assist, promote, or deter union organizing." Similarly, Section 16645.7(a) bars "a private employer receiving state funds in excess of [$10,000] in any calendar year on account of its participation in a state program" from using such funds "to assist, promote, or deter union organizing."
The 9th Circuit held that these provisions are preempted by the National Labor Relations Act (NLRA) under both the "Machinists" preemption doctrine (Lodge 76, International Association of Machinists & Aerospace Workers v. Wisconsin Employment Relations Commission, 427 US 132 (1976)) and the "Garmon" preemption doctrine (San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)).
The majority opinion said that the California statute
"chills employers from exercising their free speech rights that are explicitly protected by Congress under the National Labor Relations Act. In doing so, the statute undermines the delicate balance established by Congress as between labor unions and employers. In addition, the California statute interferes with the National Labor Relations Act’s extension of exclusive jurisdiction to the National Labor Relations Board (“NLRB”) for the adoption and enforcement of representation election rules."
My view: The second opinion is considerably more persuasive than the original opinion, but probably wrong.
California law does not limit employers' ability to express their opinions; it merely says they can't spend state money to do so. Whatever employers could say before the statute they can still say. It's just that state money must be spent on other things. Hence, in my view, no real interference with Congress's policies, and no preemption.
Stephen F. Befort (law prof at University of Minnesota Law School) and Bryan N. Smith have written a great article about this case - At the Cutting Edge of Labor Law Preemption: A Critique of Chamber of Commerce v. Lockyer, with lots of background and lots of opinions. Oh, yes, they agree with me. Or I agree with them.
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Sexual harassment without sexual conduct
September 06, 2005 by Ross Runkel at LawMemo
Most sexual harassment cases involve conduct that is sexual.
Question: What if the conduct on its face is not sex-related or gender-related, with no sexual overtures, and no gender-specific words?
The 9th Circuit has held that conduct can be sexual harassment within the meaning of Title VII even though there is nothing "sexual" about the conduct. Christopher v. National Education Assoc (9th Cir 09/02/2005).
The court put it this way:
While sex- or gender-specific content is one way to establish discriminatory harassment, it is not the only way: “direct comparative evidence about how the alleged harasser treated members of both sexes” is always an available evidentiary route. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). The ultimate question in either event is whether “ ‘members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Id. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)).
My view: The decision is correct.
- Title VII does not focus on harassment and does not focus on sexuality. It's focus is on discrimination. Here, specifically discrimination because of sex.
- "Because of sex" means because of gender, usually because of the gender of the person being harassed.
- So the key is whether one gender is being treated differently than the other gender.
- My favorite hypothetical from teaching a law school class on employment discrimination - the stink-bomb:
The supervisor puts a stink-bomb in an employee's desk. (Assume this is sufficiently "severe" (big stink-bomb) and pervasive (happens every day).) The Title VII question is "why?" Was it because of the employee's sex, race, national origin, religion? If so, then it violates Title VII. Racial harassment need not involve the use of racial slurs; religious harassment need not involve the use of religious words; sexual harassment need not involve anything that one would consider "sexual."
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Does "regarded as" disabled employee get accommodation?
September 03, 2005 by Ross Runkel at LawMemo
If an employee is not actually disabled, but is "regarded as" disabled, the ADA defines that employee as disabled. And the big question is whether such an employee has a right to a reasonable accommodation.
Circuit courts are split on this fundamental question under the Americans with Disabilities Act (ADA).
- Holding no right to an accommodation: 5th, 6th, 8th, and 9th Circuits.
- Holding there is a right to an accommodation: 3rd, 10th, 11th, and (perhaps) 1st.
Two recent cases that have answered "Yes" are worth reading:
- D'Angelo v. Conagra Foods (11th Cir 08/30/2005)
- Kelly v. Metallics West (10th Cir 06/07/2005)
My view: I used to think it was odd that a court would require an employer to reasonably accommodate an employee who was not in fact disabled. But the recent cases have got me persuaded for two reasons.
- The text of the ADA does not support treating "regarded as" disabled employees differently than actually disabled employees.
- An employer that has stereotypical views of an employee's abilities is placing artificial limitations on the employee, and should be prepared to accommodate those limitations.
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Schaumber gets NLRB recess appointment
September 01, 2005 by Ross Runkel at LawMemo
- The President will recess appoint Peter C. Schaumber as a Member of the National Labor Relations Board for a term that expires in August 2010, according to a White House press release.
- Schaumber's regular term expired August 27, leaving only two Members on a five-Member Board.
- Earlier, the NLRB announced that it would continue deciding cases even with only two Members.
- Labor Law Blog has a good commentary on Shaumer's voting record.
Thanks to Labor Law Blog for the tip.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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