The U.S. Supreme Court kicks off its new term in October, which includes two employment cases of interest: one under the Fair Labor Standards Act and the other under Title VII.

Let’s look first at the FLSA case, which presents an interesting issue of federal procedure involving the FLSA version of class actions. The case comes from the 3rd U.S. Circuit Court of Appeals, which sketched out the pertinent facts in Symczyk v. Genesis Healthcare Corp., et al. (2011). Laura Symczyk, who worked as a nurse, claimed her employer made her and others work during their lunch breaks without compensating them. She sued, asking the trial court to notify similarly situated employees of the suit and inviting them to join if they wished.

The invitation part of the suit? The defendant tried to head it off at the pass and made an offer of judgment under Federal Rule of Civil Procedure 68, which essentially says to the plaintiff, “We surrender. Here is the money we owe you. Take judgment against us. Now, go away.” In this case, the defendant offered $7,500 in alleged unpaid wages, with attorney fees and costs to be determined later by the court. Symczyk didn’t dispute the adequacy of the offer and chose not to accept it.

The defendant then argued that she no longer had a stake in the litigation, and she couldn’t continue to prosecute the action on her behalf or — and here is the point — on behalf of others. She objected, citing the employer’s strategic attempt to, as she argued, “pick her off” before the court could send notices to other potential plaintiffs.

My take: precisely. The trial court agreed with the employer and dismissed the suit. The appeals court, by contrast, took a dim view of the maneuver: “When Rule 68 morphs into a tool for the strategic curtailment of representative actions, it facilitates an outcome antithetical to the purposes behind [the FLSA].” My prediction at the high court is 6-3 for the plaintiff.

The Rule 68 case deals with limiting employer liability; the Title VII case deals with expanding it — not by a little bit but by a lot. The 7th U.S. Circuit Court of Appealsprovides the background in the racially charged case of Vance v. Ball State University, et al. (2011). Maetta Vance worked at Ball State in the catering department. As alleged, her “supervisors” created a hostile work environment for her based on race by calling her a number of names.

She sued, the trial court tossed her case and the 7th Circuit said it was right to do so. Why? These courts concluded that the “supervisors” were not sufficiently high enough in the chain of command — what the 7th Circuit defined as a person with authority of a certain magnitude — to impose liability on an employer. In other words, a supervisor who has the power to hire, fire, demote, promote, transfer and discipline.

Other courts take a more relaxed, pro-employee approach, stating that a supervisor is someone who simply oversees an employee’s daily work assignments and performance. Now the issue has been teed up for the Supreme Court. It is a close call, but I call it 5-4 for the plaintiff.

On the Horizon

That is what’s on deck for the new term, but what will next be in the powerful gravitational pull of SCOTUS? Here is a white-hot issue: Does an employee engage in statutorily protected activity under Title VII, sufficient to support a retaliation claim, when he or she rejects unwanted sexual advances? The U.S. District Court for the District of Columbia says “yes” in Dozier-Nix v. District of Columbia (2012), sets out the developing spilt of authority, and mentions that the 5th U.S. Circuit Court of Appeals said “no” in 2007′s LeMaire v. State of Louisiana, Through the Louisiana Department of Transportation and Development.

And here is another burning issue: What does it mean for the EEOC to engage in “good faith” conciliation? Recall that the EEOC, before it brings a suit, must engage in good-faith conciliation with the employer, which is essentially an effort to obtain a settlement. But what does “good faith” mean? A recent case from the U.S. District Court for the Eastern District of California, U.S. Equal Employment Opportunity Commission v. Alia Corp., sets out the differing answers, noting that the 2nd U.S. Circuit Court of Appeals and 11th U.S. Circuit Court of Appeals, along with Texas’ very own 5th Circuit, take a pro-employer view, requiring courts to examine the reasonableness and responsiveness of the EEOC’s conduct under all the circumstances. Translation: lots of running room for the employer, a narrower field of play for the EEOC.

Compare this to the 6th U.S. Circuit Court of Appeals and the 10th U.S. Circuit Court of Appeals, along with district courts in the 9th U.S. Circuit Court of Appeals, which essentially give carte blancheto the EEOC by holding that a court should only determine whether the EEOC made an “attempt” at conciliation. So the EEOC gets a trophy for trying, just like the middle school kids who get an award for playing in the game, win, lose or draw.

The Alia court sided with its sister trial courts in the 9thCircuit and adopted the lenient pro-EEOC stance. What are the blogs saying? Check out one of my favorites,, which on May 30 posted an insightful commentary predicting that this issue may be the next employment case that SCOTUS hears. Why? The court is more likely to grant cert in a case where a federal administrative agency is involved. Further, if the 9thCircuit sides with the majority of its district courts, then there will be a tie: three courts pro-EEOC and three courts pro-employer. As the blog post points out, it is a case ripe for cert.

I’ll be following the term with interest and look forward to the first Tuesday in October. Stay tuned.

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