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Supreme Court preview: Key FLSA, bias cases on tap

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in Discrimination and Harassment,Human Resources

While much of the recent U.S. Supreme Court drama has swirled around who will serve on the court, employers are looking forward to key employment-law cases that the court will hear during its 2005-2006 term, which begins on Oct. 3.

The court currently has few employment-law cases on its docket, but more will likely be added in the coming months. Here are two key issues that the court will tackle this term:

1. Must you pay for employee time spent dressing and undressing?

The high court will hear arguments on two separate cases that pose this question: Must you pay employees for time spent dressing and undressing at work if those employees are required to wear specific clothing at work?

Both Fair Labor Standards Act (FLSA) cases center on food industry workers and the protective clothing they must wear for safety reasons.

The employees claim they're entitled to be paid for the time it takes to dress and undress (referred to as "donning and doffing" in the FLSA regulations).

Case 1: Before their shifts, employees at IBP, a Washington state meatpacking plant, had to put on their protective Kevlar vests and chain mail. Then, after the shifts, they had to remove that safety gear, clean it and clean their knives.

Employees filed FLSA lawsuits because they weren't paid for these pre- and post-work duties. A lower court ruling sided with the workers, saying this donning and doffing of equipment was "integral and indispensable to the workers' duties as meat processors." (IBP v. Alvarez, No. 03-1238)

Case 2: Employees at a Maine chicken plant claimed they should be paid for time spent putting on lab coats, protective glasses, hair nets, vinyl gloves and safety boots, plus time spent walking from the dressing room to their workstations.

Lower courts agreed with the first part, saying the clothing and protective gear are "an integral part of the employees' work." But it said the company didn't have to pay for employees' time spent walking to workstations or waiting to start work. (Tum v. Barber Foods, No. 04-66)

The issue: Employees in both cases pointed to FLSA rules that say employees should be paid for time spent on "physical or mental exertion (whether burdensome or not) controlled or required by the employer, and pursued necessarily and primarily for the benefit of the employer."

On the flip side, employers argue that the FLSA's Portal-to-Portal provision only requires them to pay employees from the time they actually start work until they finish.

Impact: Circuits are split on this issue, so the Supreme Court rulings will help you pay employees correctly if you have workers who change in and out of work-related clothes or gear, or need to walk to their workstations after punching in.

2. Should 15-employee threshold protect small businesses?

The second important employment-law question facing the Supreme Court: Should employees be allowed to go forward with their sexual harassment lawsuit in federal court even before the court decides whether the employer being sued is large enough to be covered under the law?

The case: A waitress won a $40,000 judgment against the Moonlight CafÈ, a New Orleans restaurant, after claiming that the owner sexually harassed her with physical touching and lewd comments.

The cafÈ appealed, claiming it didn't employ 15 people, the minimum required for coverage under the federal Civil Rights Act. A lower court agreed, saying independent contractor drivers shouldn't count toward the 15-employee threshold.

But the EEOC has argued in a brief that federal courts can hear employment discrimination cases even if it appears that the employer being sued employs fewer than 15 people. EEOC said the court can sort out during the trial or after whether the employer meets the 15-employee threshold.

In other words, the EEOC would like federal courts to accept cases even if it looks as if the employer doesn't employ 15 people, and then let the case go forward until the employer proves otherwise.

Impact: If the high court sides with the EEOC on that argument, it could spell trouble for small businesses that could spend thousands defending themselves in court, only to have the case dismissed later, after showing they are too small to be covered by the law.

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