June marked the end of the Supreme Court's 2005-
2006 term, and unfortunately, rulings in the area of
labor and employment law may result in future
increases in litigation costs for employers.
E-mail Etiquette: Employers my want to
think twice before picking up the phone to call an
employee or shooting an e-mail his way. In IBP,
Inc. v. Alvarez, the Supreme Court ruled that
time spent by workers either putting on or taking off
protective gear and walking to and from a job site
was compensable under the Fair Labor Standards
Act. In other words, in instances when an employee
engages in a principal work activity, or an act that is
indispensable to a principal work activity, an
employer must compensate an employee for his
actions. Therefore, if an employee is answering
phone calls by a manager or reading company e-mail
messages prior to or after completing a normal work
day, the employer may be on the hook for paying his
employee extra wages.
Discrimination Downfall: According to Title
VII, the American Disability Act and the Age
Discrimination Employment Act, only those employers
that employ at least 15 employees for a 20 or more
week period in the present or preceding calendar
year may be subject to a federal cause of action
under Title VII for discrimination. Such a
computation becomes difficult when independent
contractors, part-time employees, and seasonal
workers are among the employees. Unfortunately for
the small business owner, the Supreme Court ruled
unanimously that the 15-employee threshold for
determining whether an employer is covered by Title
VII is an element of a plaintiff's claim to be decided
by a jury; not a judge. Ultimately, this means that
juries will get to decide on a case-by-case basis who
qualifies as an employee, providing less certainty and
higher litigation costs in discrimination cases.
Harass and Get Hit: The Supreme Court's
recent decision in Burlington Northern and Santa
Fe Railway Co. v. White, just made the ticket
price for defending a sexual harassment claim an
expensive trip to court. Instead of adopting a clear
standard for what constitutes a retaliatory action,
such as hiring, granting leave, discharging, and
promoting, each potentially actionable act will need
to be litigated in court to determine whether it
passes or fails the "materially adverse to a
reasonable person" standard. The implications of this
individual basis evaluation will become extremely
burdensome to small employers, as the costs
associated with potential litigation will begin to
skyrocket.
