Employment Cases and Legislation to Watch in 2008

Employment Cases and Legislation to Watch in 2008
Peter K. Newman, Esq. January 15, 2008

Note: This article is based in part on Peter’s January 22, 2008 GCHRA Legal Briefing entitled “The 2007 Employment Year In Review: A Look Back and a Look Forward.” For a complete copy of Peter’s presentation, contact him at either newmanlawgroup@gmail.com or (513)373-5080.

A. Introduction

HR Professionals will have many employment law developments to watch in 2008. Cases that could significantly change labor and employment law are currently pending in the U.S. Supreme Court, the Sixth Circuit Court of Appeals, the district courts, and in the National Labor Relations Board. In addition, the Democratic Party will once again try to push its pro-union and pro-employee legislative agenda through Congress. Here’s an overview of the cases and proposed legislation to watch.

B. Ten Employment Cases to Watch

1. Federal Express Corp. v. Paul Holowecki et al. The Supreme Court heard arguments in this case last November. At issue in this case is whether an intake questionnaire submitted to the EEOC can suffice for the charge of discrimination that is a prerequisite for bringing a lawsuit under the ADEA. The Second Circuit held that the plaintiff had fulfilled the requirement to file a charge by filing a four-page affidavit and an EEOC intake questionnaire.

2. Kentucky Retirement Systems v. EEOC. The Supreme Court heard oral argument in this case on January 9, 2008. This case raises the issue of whether the use of age as a factor in a retirement plan is “arbitrary” and, consequently, renders the plan facially discriminatory in violation of the ADEA. This is a baby-boomer issue that has drawn much attention.

3. Sprint/United Management v. Mendelson. This is potentially the most important employment case currently pending before the Supreme Court. The Court heard oral argument in this case on December 3, 2007. This case concerns whether or not so-called “me-too” evidence is admissible in an employment discrimination case.
“Me-too” evidence makes cases harder and more expensive to defend, and makes frivolous cases more difficult to dismiss.

4. CBOCS West Inc. v. Humphries. The issue in this Supreme Court case is whether a plaintiff can bring a retaliation claim under 42 U.S.C. Section 1981. Section 1981 deals with the right to make and enforce contracts, and does not explicitly mention retaliation.

5. LaRue v. Dewolff Boberg & Associates. The Supreme Court heard oral argument in this case last November. This case presents the issue of whether or not a 401(k) plan participant can sue under Section 502(a)(2) of ERISA to recover losses to an individual’s account resulting from a breach of fiduciary duty. It also addresses the issue of whether or not Section 502(a)(3) of ERISA, which allows a participant to sue for “equitable relief” for ERISA violations, permits a plaintiff to seek monetary relief as compensation for losses stemming from a breach of a fiduciary duty.

6. Huber v. Wal-Mart. On December 7, 2007, the Supreme Court granted certioriari in this failure to accommodate case under the ADA. Huber sued Wal-Mart arguing that after she became disabled, she should have been automatically assigned to another vacant position without having to compete with other job applicants. Although many commentators thought that this case would have given the Supreme Court an opportunity to flesh out the scope of the reasonable accommodation obligation, Wal-Mart recently settled this case.

7 .Vicky S. Crawford v. Metropolitan Government of Nashville et al. This is a Sixth Circuit case in which the plaintiff is still seeking a grant of certiorari from the Supreme Court. The issue in this case is whether the anti-retaliation provisions of Title VII aply to individuals who participate in an employer’s internal sexual harassment investigation where no EEOC charge or lawsuit is pending. The trial court said “no” granting summary judgment to the defendants and the Sixth Circuit affirmed.

8 Clifford B. Meacham et al. v. Knolls Atomic Power Laboratory et al. This is another Sixth Circuit case in which the plaintiffs are seeking a grant of certiorari from the Supreme Court. This case raises the issue of whether an employee claiming a disparate impact under the ADEA bears the burden of persuasion on the “reasonable factors other than age” defense, and whether the respondents’ decision to give broad discretionary authority to managers to decide who to lay off when paring down the workforce constituted a “reasonable factor other than age.”

9. Betty Dukes et al. v. Wal-Mart, Inc. This is the massive sex discrimination class action involving a 1.5 member class. The Dukes case may eventually provide the Supreme Court with an opportunity to rule on class certification and expert testimony issues that have been hotly contested in the Circuits with no clear answers for the litigants.

10. Guard Publishing Co. d/b/a/ The Register Guard and Eugene Newspaper Guild, CWA Local 37194. In March, 2007 the NLRB heard a rare oral argument in this case. The issue in this case is whether employees have the right to communicate about union matters using the employer’s e-mail system, and whether and how employers can limit use of their e-mail systems. On January 2, 2008, the NLRB held that employers can prohibit their employees from using their e-mail systems to send information about union activities.

C. Six Proposed Employment Acts to Watch

1. The Employee Free Choice Act (EFCA). This Act, which passed the House of Representatives last March, would replace the traditional secret ballot procedure employees use to vote on union representation with a card check procedure. Under this card check procedure, a union would be certified as the employees’ representative if a majority of the company’s employees signed cards indicating they supported the union.

2. The Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers Act (the RESPECT Act). This proposed Act would alter the longstanding definition of “supervisor” under the National Labor Relations Act. The RESPECT Act would require that in order for an employee to qualify as a supervisor-and thus excluded from the NLRA’s protections and barred from joining a union-the employee must spend a majority of his or her time supervising other employees. The Act would also strike “the authority to assign” and “responsibility to direct others” as conditions for being considered a supervisor.

3. The Arbitration Fairness Act (AFA). Introduced in the House and Senate in
July, 2007, this Act would ban predispute arbitration agreements in several contexts.

4. Expansion of Employee Rights Under the FMLA. On December 14, 2007, the Senate passed the National Defense Authorization Act which extends FMLA benefits to a relatively narrow segment of the workforce-spouses, children or parents of service members called to active duty, and anyone who cared for a spouse, child, or parent or next of kin injured during military service. Because of other problems with this Act, President Bush has withheld his approval. In 2008 Congress is expected to act on other proposals to expand FMLA’s benefits including: to include paid leave; to grant employees FMLA leave for participation in school activities; and to lower the threshold for businesses that are exempt from the Act.



5. The Employment Non-Discrimination Act (ENDA). This Act would prohibit discrimination based on sexual orientation. A version of the ENDA passed the House in November, drawing criticism because it did not cover gender identity.

6. The Lily Ledbetter Fair Pay Act. The Supreme Court’s May 29, 2007 decision in the Ledbetter case inspired Justice Ginsberg’s dissent essentially directing Congress to change Title VII’s180-day statute of limitations for filing Equal Pay Act claims. In July, the House passed the Lily Ledbetter Act which would allow workers to reclaim lost pay if a claim is filed within 180 days of the issuance of an allegedly discriminatory paycheck, no matter when the initial discrimination took place. Because of a threatened veto from President Bush, the Senate did not consider this Act.

D. Conclusion

Keeping an eye on the above employment cases and proposed legislation will keep you and your employer on top of all of the anticipated labor and employment law developments for 2008.