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Labor Logic

Prosser

John D. Finerty, Jr.

A number of cases before the Supreme Court this upcoming term, that begins October 3, 2005, are certain to get headlines: Ayotte v. Planned Parenthood will determine the constitutionality of New Hampshire’s parental notification requirement that would ban abortions for minors unless their parents received notice; Gonzales v. Oregon will determine whether the Justice Department can restrict doctors’ use of a controlled substance to help terminally ill patients commit suicide; Rumsfeld v. FAIR will decide whether the federal government can compel colleges that receive federal funds to allow military recruiters on campus.

There are also a number of labor and employment cases that, while less glamorous, will decide some important issues. The following is a summary.

Arbaugh v. Y&H Corp.

Jennifer Arbaugh sued her former employer, the Moonlight Café, for gender discrimination and sexual harassment based on a hostile work environment. She won a jury verdict that was later thrown out, however, by the district court because the judge found the employer did not have at least 15 employees and was thus not an "employer" for Title VII purposes. The district court, affirmed by the Court of Appeals, held that an employer must have 15 employees for 20 or more calendar weeks in order for the court to exercise subject matter jurisdiction under Title VII.

The Supreme Court will address whether or not the definition of "employer" under Title VII is a jurisdictional requirement necessary for subject matter jurisdiction or merely a question of Title VII coverage that may be waived. To date, the Seventh Circuit is among a minority of federal circuit courts of appeal that have held the 15 employee threshold is non-jurisdictional. Sharpe v. Jefferson Distrib. Co., 148 F.3d 676, 677 (7th Cir. 1999) ("plaintiff’s failure to demonstrate that the defendant has 15 or more employees is just like any other failure to meet a statutory requirement").

IBP, Inc. v. Alvorez and Tum v. Barber Foods, Inc.

The Supreme Court consolidated these two cases because they present the following legal issue: whether employers must pay employees for time spent putting on or taking off required safety equipment during non-work time. These cases arise under the Fair Labor Standards Act and the Portal to Portal Act. Prior Supreme Court precedent on the issue includes Steiner v. Mitchell, 350 U.S. 247 (1956); in that case, the Court held that workers should be paid when the activities they perform, either before or after their shift, are "an integral and indispensable part of the principle [work] activities." An activity is "integral and indispensable" only if it is essential to the employee’s job and "benefits the employer."

In IBP, the issue was specifically whether time spent walking between employees’ work areas and the place where the employees actually put on protective clothing and safety equipment was compensable time. IBP operates meat processing and packaging plants in which employees are required by law to wear unique job related safety gear. Thus, the Ninth Circuit in IBP held that employees who spend time walking between their work stations and the assembly areas where they put on safety equipment was compensable.

In Tum, the issue is whether time spent walking from place to place and the time waiting in line to obtain and put on protective clothing and safety equipment was compensable. The First Circuit held it was not. The employer in Tum processed chicken and other poultry products. Employees wear hard hats, safety goggles and protective hand wear; they collect their safety equipment one piece at a time from stations in the plant, but are not allowed to punch the time clock before they receive all of their required equipment.

The First Circuit held the employee’s time waiting in line at each station was not compensable because the Portal to Portal Act exempts from compensation any "walking, riding, or traveling to and from the actual place of performance of the principle activity or activities which such employee is employed to perform." See 29 U.S.C. § 254(a)(1). Both the Ninth Circuit in IBP and the First Circuit in Tum, however, agreed that the time spent walking to and from work stations, gathering and putting on non-unique safety equipment was not compensable time under the Portal to Portal Act.

Garcetti v. Ceballos

This case will decide the extent to which public employees have First Amendment free speech rights when they accept employment with the government. The specific issue is whether the First Amendment protects an assistant district attorney who wrote a memorandum that accused a sheriff of lying in a search warrant affidavit and, later, in court. The Ninth Circuit held the district attorney’s speech was protected by the First Amendment. As a result, the prosecutor could sue his former employer for retaliation.

The Ninth Circuit panel was split on the issue of whether the nature the employee’s statement was enough to make it protectable under the First Amendment. The majority wrote that when public employees seek to expose official misconduct, they are exercising a protected First Amendment right. The simple fact that the protected speech was also part of the employee’s job responsibilities does not deprive the employee of First Amendment protection.

The opposite view, held by one of the panel judges who dissented in part, was that the prosecutor did nothing more than his job: he was required to investigate the basis for the search warrant and, under Brady v. Maryland, 373 U.S. 83 (1963), communicate the findings of his investigation to defense counsel. In such cases, according to the dissent, every job action would raise a constitutional issue. The Supreme Court will, presumably, sort out the nature of the balancing test at issue in this case.

For more information on these cases, contact John D. Finerty, Jr. at Michael Best & Friedrich LLP at (414) 225-8269 or on the Internet at jdfinerty@michaelbest.com.

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