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The Retail Employer

The Retail EmployerAugust 2008

Supreme Court Employment Cases 2007—Part II

by Jeanne Montross

The Supreme Court decided ten employment-related cases during the 2007 term that ended this June. Not only is this an unusually large number of employment cases for the Court to take in one term, but seven of these cases were decided in favor of employees. Employers should take note of both the number of employment cases and the balance of the decisions in favor of employees. While none of the cases appear to dramatically alter the legal landscape, together they demonstrate the Court’s attention on the employment arena and a somewhat disappointing outcome for employers.

(Continued from Part I of this article in July, 2008.)

“Me-too” Evidence

Another case predicted to have significant impact on employment litigation was Sprint/United Management Company v. Mendelsohn, in which the Court held that evidence from nonparties (other employees) about discrimination they suffered at the hands of supervisors who had no role in the employment decision at issue was neither per se admissible nor per se inadmissible. In other words, the trial court must make a determination of admissibility on a fact-specific inquiry. This type of “me too” evidence is often highly damaging and the Court’s failure to provide more direction is disappointing for employers.

Remaining Cases

Of the remaining employment cases decided this term, two related to ERISA. In LaRue v. De Wolff, Boberg & Associates, Inc., the Court held that ERISA permits a claim for losses caused by breach of fiduciary duty; and in MetLife v. Glenn, the Court held that a trial court should consider an ERISA conflict of interest when it reviews a denial of a claim.

Engquist v. Oregon Department of Agriculture held that the “class of one” equal protection theory does not apply to public employees. Additionally, language reaffirming the at-will employment relationship may actually prove helpful to private employers going forward.

Finally, in Chamber of Commerce v. Brown, the Court held that a state regulation purporting to regulate employer speech about union organizing was preempted by federal labor law.

Conclusion

What does this mean for employers? While some employment experts are predicting dramatic impacts, such as a flood of retaliation lawsuits, predictions in future litigation are just predictions. Nevertheless, the decisions issued by the Supreme Court this term demand some attention by employers in a few areas. First, with several cases addressing ADEA claims, employers should ensure appropriate internal scrutiny regarding employment actions that impact older workers and, when implementing layoffs or reductions in force, ensure that sound business reasons support those actions.

The cases this term also demand continued attention to potential retaliation claims. Employers should ensure that policies and practices address retaliation, as well as train managers about the nature and consequences of retaliation. Burlington Northern significantly broadened the scope of what actions can be considered retaliation and all managers should understand that a retaliation claim can succeed even if the underlying protected activity or complaint is without merit. Be aware that these claims, as well as damages awarded for them, are on the rise and may increase again as a result of these cases. Finally, with the Supreme Court’s affirmation that retaliation claims may be brought under Section 1981, employers should also be aware of Section 1981’s 4 year statute of limitations and retain records accordingly.

Jeanne Montross advises and represents employers with respect to legal issues in the workplace. Jeanne works with David E. Nagle in the Richmond office of Jackson Lewis. David has advised employers with respect to legal issues in the workplace for over 25 years. He is a partner in the Richmond office of Jackson Lewis, a law firm devoted exclusively to the representation of employers in labor, employment, employee benefits and immigration law matters. Jackson Lewis has over 450 attorneys in 32 cities across the nation. David may be contacted at (804) 648-4077, or at nagled@jacksonlewis.com. Jeanne may be reached at (804) 212-2860, or by email at jeanne.montross@jacksonlewis.com.

Calls requesting information on the Employment Law Information Program should be directed to Preston Perrin with the Retail Merchants Association at 804-662-5500.

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Combat Misery at Work: Understanding the Problem of Anonymity

Imagine your first day on a job. With equal measures of expectation and dread, you head to work, not sure yet what you face—much less who you'll be working with. Now, imagine waking up to go to work a year later, and all you feel is the dread. You feel like no one would miss you much if you didn't show up, and you certainly wouldn't miss the job, but you can't afford to lose it. So you go in each day and do what's required. But you spend hours in your lonely workspace just waiting to go home.

This isn't what you thought you were signing on for. On top of that, there's no one you can share your frustrations with. And if another opportunity presented itself, you'd be the first to jump ship and leave.

Sounds miserable, doesn't it?

What would you do if you were the employer in this situation, with this miserable worker on your watch? Their attitude and work ethic is lackluster to say the least. Worse, it seems to be rubbing off on the rest of your team. Morale is low, productivity is at a minimum, and you aren't sure what to do. After all, people are in control of their own attitudes, right? You find yourself slipping into apathy, resigning yourself to the idea that you're powerless to change the situation. Or are you?

The truth is, there is an answer to your problem. And it's easier than you might think. What you're dealing with is the problem of anonymity—when an employee feels that no one sees or cares about them at work. According to Patrick Lencioni, author of The Three Signs of a Miserable Job, solving the problem of anonymity is one of the three keys to fostering fulfilled, valuable, and passionate employees—no matter what your industry or market.

The Problem with Anonymity

So, why does anonymity create job misery? It all boils down to this one fact: People want to be treated like people. All the time. Everywhere. Even at work. This means that they need to be seen, heard, and known. Why is this important? For one, people spend a lot of time at work. And when they're miserable on the job, that misery easily creeps into other facets of life. Miserable jobs create miserable people, and that vicious cycle is tough to escape.

There's another reason it's important to tackle anonymity at work: "People who see themselves as invisible, generic, or anonymous cannot love their jobs, no matter what they are doing," Lencioni says. And people don't thrive—or stay for long—at jobs they hate. On the other hand, when people feel acknowledged at work, they are more apt to be loyal, motivated, and productive.

The Solution to Anonymity

So if anonymity is such a problem, how can you cure it? Again, the answer is clear and simple—by personally investing time into building relationships. This will look different for every leader. But it's important that it starts from the top, with anyone who manages people. That's because the relationship between an employee and their direct supervisor is the No. 1 indicator of job satisfaction. In fact, poor or non-existent relationships are the top reason most dissatisfied workers leave companies. And the costs of turnover and job dissatisfaction are high—they drain time, resources, and money out of companies everywhere, every day.

That's why top priority for every manager should be the fine art of managing—people, that is. Though it may seem impossible to fit anything else into an already tight schedule of meetings, reports, and budgets, every moment you invest in building relationships will pay back in dividends.

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Ms. Lorraine Alexander at 804-550-0200 or lorraine.alexander@expresspersonnel.com if you would like to be added to their distribution list. Express Personnel now offers RMA members a Retail Staffing Program. More information is available online through www.retailmerchants.com.

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Emergency Preparedness and Response Program: September 17, 2008

The County of Henrico Division of Fire Office of Emergency Management is sponsoring an all-hazards business preparedness seminar on September 17, 2008. This free seminar (with lunch provided!) is intended to offer businesses more information on how to prepare for all types of disasters—everything from a fire to identity theft to how to put together continuity of operations plans. This program is not limited to businesses in Henrico—everyone is welcome, no matter the size of the business! In times of crisis, we will certainly depend on businesses to be able to help the community recover!

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Minimum Wage Information

Effective July 24, 2008, the Federal Minimum Wage is $6.55 per hour. More minimum wage information is available on the U. S. Department of Labor website at http://www.dol.gov/esa/minwage/america.htm.

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