The Supreme Court opened its term with an employment case. On October 3, it heard argument about whether a worker at a meat processing plant is entitled to be paid for the time she spends each day putting on and removing 10 pounds of protective equipment.
“The regulations in this area are somewhat confusing,” says Rafael Gely, professor of law at the University of Cincinnati [and a former blogger]. “It is also the case that employers try to push the limit wherever possible. A few seconds becomes a couple of minutes and that window keeps expanding a little bit at a time.”
Labor costs for employers could rise substantially if they are forced to pay each time the window opens. A Supreme Court ruling in favor of employees also would “add fuel to the fire” of an emerging area of litigation, says Edwin Keller Jr., a lawyer at Kamer Zucker & Abbott in Las Vegas.
“Wage and hour class-action lawsuits have become a cottage industry across the United States,” he says.
We are indeed condemned to repeat history.
After a mess of litigation over compensation for getting dressed, showering, walking to and from worksites, etc. Congress long ago (in the late 1940s) passed the Portal-to-Portal Act, which contains this provision:
Other employment law cases currently on the Supreme Court docket include a whistle-blower case, one involving federal employee collective bargaining, and one that could determine whether judges or juries should decide who is an employee in discrimination suits. In the latter case:
Actually, this somewhat misstates the issue. See the Petitioner’s brief [.pdf.] in Arbaugh v. Y&H Corp., stating the Question Presented as:
“The regulations in this area are somewhat confusing,” says Rafael Gely, professor of law at the University of Cincinnati [and a former blogger]. “It is also the case that employers try to push the limit wherever possible. A few seconds becomes a couple of minutes and that window keeps expanding a little bit at a time.”
Labor costs for employers could rise substantially if they are forced to pay each time the window opens. A Supreme Court ruling in favor of employees also would “add fuel to the fire” of an emerging area of litigation, says Edwin Keller Jr., a lawyer at Kamer Zucker & Abbott in Las Vegas.
“Wage and hour class-action lawsuits have become a cottage industry across the United States,” he says.
We are indeed condemned to repeat history.
After a mess of litigation over compensation for getting dressed, showering, walking to and from worksites, etc. Congress long ago (in the late 1940s) passed the Portal-to-Portal Act, which contains this provision:
[N]o employer shall be subject to any liability or punishment under the [FLSA] . . . on account of the failure of such employer to pay . . . for . . .
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
Now, I’m not always a strict constructionist, but if I were on the Supreme Court I would grant cert. on this case for one reason only: to join the predictable Scalia-Thomas vote in saying that this statute means what it says. “Putting on and removing 10 pounds of protective equipment” can only be viewed as “preliminary to or postliminary to [the] principal activity or activities,” and thus non-compensable.
Other employment law cases currently on the Supreme Court docket include a whistle-blower case, one involving federal employee collective bargaining, and one that could determine whether judges or juries should decide who is an employee in discrimination suits. In the latter case:
Plaintiff . . . alleges that a supervisor . . . sexually harassed her. In 2001, she quit and filed an employment discrimination civil rights suit . . . Under Title VII of the 1964 Civil Rights Act, a business must employ at least 15 workers for 20 or more weeks to be subject to a suit. Two weeks after the jury handed down its decision in [plaintiff’s] favor, [the employer] moved to have the case dismissed. It argued that a district court did not have jurisdiction because [the employer] did not qualify as a 15-worker employer–unless delivery drivers and the restaurant owners and their wives were counted. Employers want the Supreme Court to rule that defining who is an employee is a matter of law to be determined by a judge rather than a fact left up to a jury. “A judge is better equipped to apply these kinds of statutes,” Keller says.“Justices Face Full Workplace Docket”
Actually, this somewhat misstates the issue. See the Petitioner’s brief [.pdf.] in Arbaugh v. Y&H Corp., stating the Question Presented as:
Section 701(b) of Title VII of the 1964 Civil Rights Act limits the Title VII prohibition against employment discrimination to employers with fifteen or more employees. Does this provision limit the subject matter jurisdiction of the federal courts, or does it only raise an issue going to the merits of a Title VII claim?
The significance of the issue is that if the requirement is jurisdictional, a finding at any time, even after trial, that the minimum number of employees does not exist deprives the court of jurisdiction and requires dismissal.
If this issue is not jurisdictional, it may be too late to raise it after a certain point in a case. But that doesn’t mean it necessarily is a question for a jury rather than a judge. I would view it as a mixed question of fact and law. There is no jury question if the material facts are undisputed and it is just a matter of interpreting them under the law applicable to determining what constitutes an employment relationship.
