Justices Face Full Workplace Docket

By Staff Report

Oct. 4, 2005

One of the first oral arguments presented to new Supreme Court Chief Justice John G. Roberts Jr. may result in increased momentum for a new type of employment lawsuit.

On October 3, the opening day of its 2005-06 session, the court heard a case involving a worker at a meat processing plant in Pasco, Washington, who claims that her employer, IBP Inc., owes her pay for the time she spends each day putting on and removing 10 pounds of protective equipment.

The court also considered a companion case, brought against Barber Foods of Portland, Maine, by workers who allege that the poultry plant does not compensate them for the time required to assemble and don various pieces of safety equipment.

“The regulations in this area are somewhat confusing,” says Rafael Gely, professor of law at the University of Cincinnati. “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.

Other items on the court’s employment law docket so far include a whistle-blower case and the issue of collective bargaining for federal employees.

“It looks very similar to the last four or five Supreme Court terms, both in the number and mix of cases,” Gely says.

But this court session will feature a new chief justice and potentially a replacement for retiring Justice Sandra Day O’Connor, who took a nuanced, case-based approach to employment discrimination and was often a swing vote in 5-4 decisions.

The newly configured court also will hear a case that could determine whether judges or juries should decide who is an employee in discrimination suits.

Plaintiff, Jennifer Arbaugh alleges that a supervisor at the Moonlight Café in New Orleans sexually harassed her. In 2001, she quit and filed an employment discrimination civil rights suit against Y&H Corp., which owns the restaurant. 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 Arbaugh’s favor, Y&H moved to have the case dismissed. It argued that a district court did not have jurisdiction because Y&H 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.

Mark Schoeff Jr.

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