- Veritude

<p>The first full term of the Supreme Court with its newest members - the Roberts Court - opens Oct. 2, 2006, with two significant cases on workers´ rights already scheduled for decision, and an array of other employment law disputes waiting for the court´s initial reaction.</p>

<p>The new chief justice, John G. Roberts Jr., was on the bench for all of last term, but the new associate justice, Samuel A. Alito Jr., served only about half the term. Because the court voted unanimously on all of a handful of key employment law cases last term (Alito did not take part in all of them), it is not yet clear whether the new members will help tilt the court toward more management-friendly or more worker-friendly outcomes.<br>
Although the court has promised decisions in only two cases in this field for the 2006-2007 term, it could add to that number even before the term formally opens. Some of the cases that built up on the docket over the summer recess could be granted in orders due out on Sept. 26 following the justices´ initial private conference. Other cases probably will be granted as the term unfolds.<br>
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<strong>Disparate Pay Case Hinges on When Clock Is Set for Complaint Deadline.</strong><b><br>
</b> Of the two cases granted review so far, Ledbetter v. Goodyear Tire & Rubber Co. appears likely to have the widest impact. The case involves a claim of unequal pay for a female worker in a tire assembly plant, in violation of the anti-discrimination provisions of Title VII of the 1964 Civil Rights Act.<br>
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There have been nearly 40,000 "disparate pay" cases under Title VII in the past five years alone, and most if not all of these could be affected by the outcome in this case, the woman´s lawyers say.<br>
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The issue is whether each paycheck for a worker, at a discriminatory level, amounts to a new violation or does the violation come only at the time of the actual decision on the pay level that discriminates against that worker. If each paycheck does break the law anew, that gives the worker additional time to file a claim and thus avoid losing some part of the potential recovery under the law´s 180-day filing deadline.<br>
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In this case, the 11th U.S. Circuit Court of Appeals based in Atlanta ruled that an unequal pay claim under Title VII must be made within 180 days of the actual decision setting the worker´s pay scale. Even though that pay decision has a continuing impact with each paycheck, each check does not count for filing deadline purposes, the appeals court found.<br>
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The case involves Lilly M. Ledbetter, who is now retired from Goodyear after working 19 years in its Gadsden, Ala., plant. At one point late in her career, Ledbetter was making $3,727 a month, some 15 percent less than the lowest pay for a male in her group at the plant. She ultimately won a verdict of $360,000 after the jury accepted her challenge to every annual review of her salary back to early in her career. The circuit court overturned that verdict, finding that none of the late-career disparate pay decisions which she was legally entitled to challenge was based on her gender.<br>
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A hearing date for that case has not yet been set.<br>
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<strong>Railroad Case Will Determine How Injury Liability Should Be Allocated.</strong> <b><br>
</b> The week after the start of the new term, the court will consider the other labor law case set for review. On Oct. 10, it will take up an important case on how juries are to allocate blame for nonfatal injuries to railroad workers - an issue that is said to arise in nearly every case in which a worker sues a railroad for damages for on-the-job injuries. Although the rail industry insists it is one of the nation´s safest, the Federal Railroad Administration reports that there are about 14,000 accidents a year, resulting in more than 9,000 nonfatal injuries to employees.<br>
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The industry estimates that it spends nearly $1 billion a year paying claims to injured workers and financing the legal defense against workers´ injury lawsuits under the Federal Employers Liability Act of 1908.<br>
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The specific case, Norfolk Southern Railway Co. v. Sorrell, grows out of a mundane incident in which a Norfolk Southern laborer drove a truck off a road into a ditch in Elkhart, Ind., while going to pick up supplies for rail maintenance. He sued the railroad, claiming that the driver of another railroad-owned truck forced him off the road. His lawyers filed the case in Missouri, because the negligence-allocation formulas imposed on juries in that state are more favorable to employees than to management.<br>
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The worker, Timothy Sorrell, won a jury verdict for $1.5 million.<br>
The judge instructed the jurors to find negligence on the part of the worker by a different standard - and a more lenient one - from negligence on the part of the railroad. The railroad´s appeal to the Supreme Court argues that FELA requires a uniform standard, directly comparing the fault of the worker to that of management. <br>
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<strong>Dozens of Additional Employment Cases Await Consideration.</strong><br>
As the court approaches the start of the new term, more than four dozen employment law appeals have been filed, but only a few are likely to be granted.<br>
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One of the more significant new cases to be considered early in the term involves an appeal by a Chicago-based law firm asking the court to clarify when the Equal Employment Opportunity Commission may pursue a claim of job-related discrimination when the particular worker or workers involved could not pursue it on their own. Although the case of Sidley Austin LLP v. EEOC involves only a dispute under the Age Discrimination in Employment Act, the firm´s lawyers note that the EEOC also enforces Title VII on race and gender bias, the Americans with Disabilities Act, and the Equal Pay Act, and the agency´s powers under all of those laws could be affected.<br>
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The case involves a decision by the law firm in 1999 to demote 33 of its member attorneys from partner, an action that EEOC claims violated the law against age bias. None of those former partners can pursue their own claims now, because they did not seek any remedy first from EEOC. But EEOC contended that it could go ahead, on the former partners´ behalf, seeking damages for each individual to make up for the discrimination. The case had not gone to trial before the law firm appealed.<br>
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Lower federal courts are split on whether the EEOC can pursue any damages remedy on its own, when the workers´ own conduct, such as failing to file their own claim within a filing deadline, bars them from seeking such relief under federal law. In the Sidley Austin case, the 7th U.S. Circuit Court of Appeals based in Chicago ruled that the EEOC´s powers do not derive from the legal rights of individuals, even when the commission is seeking a remedy for those individuals. The firm´s appeal has drawn the support of the U.S. Chamber of Commerce, which accuses the EEOC of making "a sweeping assertion of limitless enforcement authority."<br>
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Three new cases seek to clarify the duty of employers to continue paying retirement benefits that were provided by a labor contract, an issue that turns on whether such a contract vests the workers with lifetime continuation of their pension or health benefits.<br>
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The first case involves a cutoff of benefits when the employer went bankrupt (United Retired Pilots Benefit Protection Association v. United Airlines). Two others, arising out of the same federal appeals court ruling, involve claims of continuing benefits after a labor contract has expired and the company which agreed to that contract has been bought by another company (Yolton v. El Paso Tennessee Pipeline Co. and CNH America v. Yolton).<br>
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Another new case tests the duty of hospitals and other medical facilities to pay overtime to nurse practitioners and physician assistants who are licensed to practice medical science and care. The Labor Department contends they are not eligible for overtime, but lower courts have split on the issue (Belt v. EmCare Inc.).</p>

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<p><b>Lyle Denniston</b> is a veteran Supreme Court reporter, having covered the highest court for 47 years. He thus has covered one out of every four Justices ever to sit on the Court. Denniston writes for <i><a href="http://www.veritude.com/ResourceCenter/Home.aspx"><b>Workforce Insights</b></a></i>, an online resource about emerging labor trends and issueson <a href="http://www.veritude.com/"><b>Veritude.com</b></a>.  Most recently with <i>The Boston Globe</i>, Denniston is now reporting on the Court for SCOTUSblog, a Web site devoted to news and information about the Court, and for the NPR Boston affiliate, WBUR.</p>

<p>The article originally appeared in <i><a href="http://www.veritude.com/ResourceCenter/Home.aspx"><em><b>Workforce Insights</b></em></a></i>on <a href="http://www.veritude.com/"><b>Veritude.com</b></a>. A <b>Fidelity Investments</b> company, Veritude´s talent solutions help organizations effectively manage change, drive competitive advances, and create new human resource service delivery models.  Headquartered in Boston, Mass. and founded in 2000, <b>Veritude</b> has earned the respect of its clients through its unrelenting commitment to outstanding customer support, candidate quality and cost effective programs.  More information can be found at <a href="http://www.veritude.com/"><b>www.veritude.com</b></a></p>

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