News
RECENT EMPLOYMENT LAW DEVELOPMENTS
Since it now summertime, the U.S. Supreme Court’s 2005-2006 term has ended and there are, as usual, several important decisions that affect your rights as an employee.
Perhaps the biggest victory for employees occurred in the recent decision in Burlington Northern & Santa Fe Ry. Co. v. White where the court dealt at length with the anti-retaliatory provisions of Title VII of the Civil rights Act of 1964. The court drew a clear distinction between the anti-retaliatory and anti-discrimination provisions of Title VII. The anti-discrimination provisions is limited to the place of employment being: “compensation, terms conditions, or privileges of employment” and “status as an employee.” The anti-retaliation provisions contain no such limitations, thus Congress intended them to have a much broader scope namely to protect an employee ability to pursue the statute’s remedy. Thus the anti-retaliation provision does not confine the actions and harms it forbids to those related to employment or that occur at the workplace. This means that an employee who has faced retaliation but has not been fired, denied a promotion, or subject to an “ultimate employment action” can still bring a retaliation lawsuit as long as the action of the employer “would have been materially adverse to a reasonable employee.” This is a major win by enlarging the class of misconduct by an employer that will subject it to liability.
In a brief opinion issued before the filing of briefs, the U.S. Supreme Court issued a muddy guideline as to whether an employer’s reference to an African-American job applicant as a “boy” is per se evidence of discrimination in Ash v. Tyson Foods, Inc.,. The Eleventh Circuit Court of Appeals, based in Atlanta, held that “boy” standing alone is not a basis for a racial discrimination suit. The Supreme Court reversed the appeals court and asserted that there instances where “boy” could be evidence of “discriminatory animus” depending on the context, inflection, and custom. “Although it is true the disputed word will not always be evidence of racial animus, it does not standing alone, is always benign.”
Turning towards the Fair Labor Standards Act of 1938 which regulates minimum wage and overtime compensation, the Supreme Court continued to broadly define the start and end of the work day in IBP, Inc. v. Alvarez. As you may know, IBP processes meat for sale at many grocery stores and restaurants. Its employees work with large very sharp knives and are required to wear a lot of protective equipment for their hands, arms and torsos. The company determined that it would pay workers only after they had put on their safety equipment and began to cut meat and ended when they had cut the last piece of the shift. The Supreme Court made it clear that the time spent obtaining the safety equipment and putting it on and removing it at the end of the shift was compensable and the employees must be paid for it at their regular hourly rate.
In the various federal courts of appeal around the country, the bulk of the decisions affecting employee rights are finally determined. Here in Ohio we are part of the Sixth Circuit Court of Appeals based in Cincinnati. The Sixth Circuit covers Michigan, Ohio Kentucky and Tennessee. Since the U.S. Supreme Court only issues under 100 opinions a term, the courts of appeals is the final word for the overwhelming majority of cases. In an effort to keep this discussion aimed to the public, I have selected those cases which have an immediate impact on your rights or reflect current news events.
For instance if you recall the tragic Sago Mine accident last winter, it will perhaps not surprise you that the owner of the mine might try to limit any investigation of the accident by the United Mine Worker’s along with the Mine Safety and Health Administration of the U.S. Department of Labor. The UMW was requested by two miners to be their representative for the investigation even though the mine was non-union. Wolf Run Mining Co., tried to prohibit the union’s involvement in the ongoing investigation. The Fourth Circuit Court of Appeals, based in Richmond, VA., granted the Labor Department’s request for an injunction to permit the union’s participation since the Mine Safety Act contains no limit on who may represent the miners during an inspection.
Many of you know friends or family members who have lost their jobs and been requested to sign a release of any possible claims in order to receive a benefit package of continued salary and perhaps continued medical insurance. If the terminated employee is over 40, they have certain protections that the company must satisfy if the release is to be effective. Among those required disclosures is the identity of the employees who keep their jobs, their ages and the identity of those laid off and their ages. This has been clear for sometime now. What is new is the Tenth Circuit’s decision that the criteria used to select the employees for the RIF must also be disclosed. this is a valuable aide for anyone trying to determine if their selection might be based on age discrimination. The Tenth Circuit is based in Denver. CO. The decision is Kruckowski v. The Weyerhauser Co.
Among the relatively little known protection available to women is the right to equal pay for equal work as set forth in the Equal Pay Act. This past spring the Sixth Circuit remanded a case for trial that was brought by female nurse practitioners under the Equal Pay Act who alleged that male physician assistants were paid more than females even though they performed substantially the same duties. The females produced evidence showing that the hospital’s reasons for the difference were not credible since they were more highly educated, had the same responsibility of PA’s, received more training than PA’s and were paid less. Beck-Wilson v. Principi.
Closely aligned to the Supreme Court’s decision in Burlington Northern, discussed above, the Sixth Circuit held that a transfer to another location can be a tangible employment action to support a retaliation claim. Here the company laterally transferred a sexual harassment victim to a different retail store some 120 miles from her home. This was retaliation since the employee’s commute had become so long that she had to consider relocating. Keeton v. Flying J, Inc.
When many people feel that may have been the victim of some form of discrimination, they often seek to compare themselves to someone who is outside their protected category. How to determine who is the proper employee to compare the victim to in order to determine if there was different treatment occurred is often a hotly disputed issue. The test is whether another employee who is substantially similar in all relevant aspects. Among the factors to be reviewed is whether they both have the same supervisor. In McMillan v. Castro, the Sixth Circuit eased the employee’s proof requirements in this regard by finding that the same supervisor was not required when all the personnel involved in the decision making process were well aware of the discipline that imposed on previous violators. By the way, this case involved a suit by an attorney of the EEOC for discriminatory treatment by the counsel’s office.
We hope you find this discussion interesting and will return again for the latest developments.