A distinguished panel of speakers discussed the Supreme Court’s labor and employment law decisions for the 2005-2006 term at a program sponsored by the Labor & Employment Law Section on July 20, 2006.

Commenting on the significant decisions of last term were:

• Shane Brennan, Labor & Employment Law Counsel for the National Chamber Litigation Center (NCLC);
  
• James Coppess, Associate General Counsel, AFL-CIO;
  
• Thomas Goldstein, head of the Supreme Court practice group at Akin Gump; and
  
• Carolyn Wheeler, Assistant General Counsel, EEOC.

In addressing the Supreme Court’s decision in Burlington Northern v. White, Carolyn Wheeler characterized the decision as a major win for employees, with the Supreme Court enunciating a hybrid standard whereby the anti-retaliation provision of Title VII covers those employment actions that would have been materially adverse to a reasonable employee or job applicant.

Wheeler noted that in arriving at this standard, the Court combined both the “materially adverse change in the terms of employment” standard adopted by most circuit courts and the EEOC’s view that an adverse action is one that is “reasonably likely to deter” a worker from making or supporting a charge of discrimination.

After the decision was announced, some observers predicted that the Burlington Northern case would increase dramatically the number of retaliation claims filed by plaintiffs. Wheeler expressed the view, however, that the case might actually reduce litigation by encouraging employers to adopt and implement policies to insure that employees are not retaliated against for reporting or complaining of discrimination in the workplace.

James Coppess pointed out that the Court’s opinion in Burlington Northern went further than necessary by enunciating the standard that retaliation may include not only adverse actions in the terms and conditions of employment, but, additionally, adverse actions outside the workplace. Coppess questioned the strategy adopted by the employer in the case as being a tactical maneuver that backfired and produced an opinion extremely favorable to employees.

Shane Brennan of the NCLC expressed her disappointment in the decision and predicted that not withstanding Wheeler’s comments, the decision would result in more complaints of retaliation being made. In addition, Brennan questioned the consistency of the standard enunciated by the Court for actionable retaliation as combining a reasonable person standard with a subjective standard, which may lead to less predictability and more divergence in the decisions of lower courts.

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Thomas Goldstein, who represented the plaintiff employees in IBP, Inc. v. Alvarez and Tum, et al. v. Barber Foods, Inc., discussed the impact of the Court’s opinion, which held that compensable time under the Fair Labor Standards Act included the time that the employees walked between their changing areas and the production areas. Although the Supreme Court’s decision certainly was favorable to employees, Goldstein cautioned that too much should not be read into the unanimous decision in light of the fact that, in reaching its decision, the Supreme Court was “boxed in” by prior Court decisions dealing with compensable time.

James Coppess mentioned that one of the ramifications of the decision may be to heighten awareness of an employer’s obligation to compensate workers for all time worked and to increase the number of lawsuits brought where employers require “off the clock” work by employees.

Shane Brennan noted that the ramifications of the decision may be seen in the Eleventh Circuit’s consideration of a case involving construction workers at an airport, who, pursuant to FAA regulations, must go through security before starting actual work. The issue before the circuit court is whether these employees should be compensated for the time spent in going through security.

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The issue of free speech and First Amendment protections for public employees was addressed by the Supreme Court in Garcetti v. Ceballos, where the Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes and the Constitution does not insulate their communications from employer discipline.

James Coppess predicted that the result of the decision would be to increase the impetus for employers to adopt internal grievance procedures so that an employee would not feel that he or she needed to go outside the workplace in order to air work related grievances.

Thomas Goldstein also discussed his representation of Terry Whitman before the Supreme Court in a case involving the claim that the Federal Aviation Administration’s drug and alcohol testing violated his Constitutional rights. In that case, Whitman v. Dept. of Transportation, the Supreme Court did not address the substance of Whitman’s claim, but, rather, remanded the case for further proceedings as to whether the Civil Service Reform Act precludes employees from pursuing remedies beyond those set forth in the CSRA, including Constitutional claims.

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Other Supreme Court decisions addressed by the panelists included Arbaugh v. Y&H Corp., where the Court held that Title VII’s application to employers of fifteen or more employees was not jurisdictional and, therefore, could not be raised defensively late in a lawsuit; Ash v. Tysons Food, Inc., where the court rejected the Eleventh Circuit’s rule that a disparity in qualifications must “slap you in the face” in order to show an employer’s defense of better qualifications is pretextual; and Sereboff v. Mid-Atlantic Medical Services, Inc., where the Court held that a claim for subrogation pursuant to an employer’s health benefit plan is one for equitable relief and, hence, may be brought pursuant to ERISA.

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Finally, the panelists discussed what labor and employment law cases are on the Supreme Court’s docket for next term. The one case for which the Supreme Court has granted certiorari, Ledbetter v. Goodyear Tire & Rubber Co., involves an Eleventh Circuit decision in which the question is raised as to whether a plaintiff may challenge each of an employer’s regular reviews and adjustments of a plaintiff’s salary or if a plaintiff may challenge only the last review/adjustment, as all the others are barred by the statute of limitations.

In previewing this case, Carolyn Wheeler pointed out that the Eleventh Circuit’s decision concerns the intersection between the Supreme Court’s opinion in Bazemore v. Friday, which was decided in 1986, and its more recent 2002 opinion in National Railroad Passenger Corp. v. Morgan.

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A paper entitled “Review of the Supreme Court’s Employment Cases (2005-2006 Term) and a Preview of This Term (2006-2007),” by Robert B. Fitzpatrick, Esquire. was handed out at the program. The paper includes an extensive discussion of all of the cases addressed at the program, as well as additional Supreme Court decisions of interest to labor and employment law practitioners.

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