The first Monday in October marks the statutorily mandated beginning of the Supreme Court’s new term. As with any term, the cases scheduled for argument so far might have a broad effect on how central Kentucky businesses operate, from employment and labor issues to taxation and esoteric questions of securities law. With this in mind, the following is a review of pending cases before the court that could have the most significant impact on Kentucky businesses.
The first case that will have, at minimum, a targeted and specific outcome for at least one local employer is Integrity Staffing Solutions v. Busk. An Amazon employee brought suit against Integrity (which provides staffing services to companies such as Amazon.com locally and nationally) over the fact that stringent security practices cause employees to wait in lines both entering and leaving the warehouses. That time spent waiting in line isn't currently compensated, but it is a requirement of employment for the mostly hourly workers.
“The issue is whether or not federal wage and hour laws required the employees to be paid when they stand in line for 25 or 30 minutes going through security checks every day,” said Steve Amato, an attorney with McBrayer, McGinnis, Leslie & Kirkland, PLLC. “That's got an impact on every business that has procedures like that. You've got to presume that things like security checks are going to do nothing but increase in the future for employers.”
Another case of interest to employers is that of Young v. United Parcel Service, Inc. The issue in this case is whether employers who provide work accommodations to non-pregnant employees with work limitations must also provide the same accommodations to pregnant women with similar limitations under the Pregnancy Discrimination Act of 1978 (PDA).
The petitioner in this case was a morning driver for UPS who was told by her physician and a midwife not to lift more than 20 pounds for the first 20 weeks of pregnancy and not more than 10 pounds for the rest. As her job required she lift packages up to 70 pounds, she requested a lighter duty position, something afforded to those with disabilities and job-related injuries, as well as those who have lost their Department of Transportation driving certification. After being denied in her request for light duty, the driver finally took an unpaid leave of absence and lost her health insurance benefits as a result.
“On the surface, it would seem that the simplest solution might have been for UPS to accommodate Young’s restrictions for the limited time she needed them and avoid the controversy, negative press and legal fees associated with this dispute,” said Debra Dawahare, an attorney with the Lexington office of Wyatt, Tarrant and Combs, LLP. “But for an employer the size of UPS, such a step could be only the first toward a situation in which it then had to accommodate everyone’s temporary restrictions by offering light duty to anyone who could present a doctor’s excuse. Otherwise, it might be accused of favoring pregnant women, not just obeying the law requiring that it not discriminate against them.”
Young's position in this case, according to Dawahare, actually interprets the Pregnancy Discrimination Act in the same broad manner as the EEOC has advanced in its Enforcement Guidance on Pregnancy Discrimination, issued in June. The guidance states the EEOC's position in interpretation of the act but doesn't have the force of law.
“The Fourth Circuit’s position in UPS’s favor is well supported by existing law, and I would expect SCOTUS to affirm it, leaving to Congress the eventual decision of whether to extend the PDA’s coverage through amend-ments requiring accommodations for employ-ees who are, have been or may become pregnant, just as Congress in recent years extended the ADA’s scope of coverage through the broad amendments contained in the ADAAA,” Dawahare said.
One last major case that could have ramifications for employers is EEOC v. Abercrombie & Fitch, Inc. In that case, a Muslim woman applying for a job at Abercrombie & Fitch was denied employment when it was determined that her headscarf would be a violation of the company's “Look Policy,” a mandated set of standards for the appearance of store employees. Although the hiring officials knew her headscarf was religiously motivated, the issue before the court is whether Title VII of the Civil Rights Act of 1964 requires the employee or applicant to affirmatively state that she or he requires a religious accommodation, rather than assuming the employer should have knowledge.