New Overtime Rule for Salaried Employees Announced

**UPDATE: Since this article was first published, a U.S. District Court in Texas held that these proposed regulations were unlawful and prevented them from becoming enforceable as of December 1. The Department of Labor appealed that decision to the 5th Circuit Court of Appeals. But then, Inauguration Day happened and a new Sheriff came to town, bringing with him a new Department of Labor Secretary and a new agenda. Consequently, the Department asked the Appeals Court for an extension of time to file its legal brief until it could determine what its position about these new proposed rules was going to be under President Trump. Because the new Labor Secretary has still not been confirmed by the Senate, the deadline for the Department's legal brief filing was most recently pushed back until June 30. More updates to come; stay tuned. 

This morning, President Obama and the Department of Labor (DOL) announced the publication of a final rule that will change the minimum monetary threshold required for employers to categorize employees as "salaried" under the federal Fair Labor Standards Act (FLSA). 

In order to legally classify an employee as "salaried" under the FLSA, an employer must prove that the employee meets two tests: the weekly salary test and a factual job-duties test. The most commonly utilized job-duties tests are the executive, administrative, and professional exemptions (also commonly known as the "white collar" exemptions). The DOL's newly announced rule does not make any changes to the factual job-duties portion of these exemptions. 

What will change (and in a big way) is the amount of weekly salary an employee who otherwise meets one or more of the factual job-duties tests must be paid in order to properly be classified as "salaried." Currently, an employer need only pay an employee a minimum of $455 per week in order to meet the weekly salary test. Under the DOL's new final rule, however, that minimum will be increased to $913 per week, or $47,476 a year. This new rule becomes effective on December 1, 2016.

This means that in 6 months, Employers who fall under the requirements of the FLSA will have to ensure that all of their "salaried" employees earn at least $913 a week in order to keep that classification. If any employee earns less than $913 a week come December 1, it does not matter what his or her job duties are—the employer cannot pay that employee on a "salaried basis." Rather, the employee must be paid as an hourly employee, which means the employer is then legally obligated to pay overtime at a rate of one-and-a-half times the regular rate of pay to that employee for all hours worked in excess of 40 a week, no matter what type of job the employee is performing. 

The DOL also announced that this new "wage floor" for salaried employees will be adjusted every three years so that the minimum weekly salary will always be equivalent to the 40th percentile of weekly earnings for full-time salaried workers in the lowest-wage Census Region. These adjustments will be published by the DOL at least 5 months before their effective date and will be placed on the Wage and Hour Division website. The first automatic adjustment will occur on January 1, 2020.

For more details on the DOL's final overtime rule, click here. Employers should start performing self-audits of their salaried employees now and put a game plan in place to ensure that compliance with these new requirements is achieved before December 1.

Did You Know That a "Temp" Can Also Be An "Employee?"

For all you employers out there who regularly rely on "temp" agencies to supply individuals to fill gaps your day-to-day operations and cover for exigencies that arise, a recent decision from the Third Circuit Court of Appeals should give you pause and (perhaps) yet another thing to worry about (yay, law!)

In Faush v. Tuesday Morning, Inc. (available here), the Third Circuit held that a "temp" worker assigned by a temp agency to work at Tuesday Morning, Inc., could be considered an "employee" of Tuesday Morning for claims of race discrimination under Title VII and the Pennsylvania Human Relations Act (PaHRA).

The factual scenario was rather unremarkable and probably familiar to most employers. Tuesday Morning (a home-goods retailer) was in the process of opening a new store in Pennsylvania. But because it didn't yet have a full complement of employees at the new store, it needed to bring in some "temp" workers as a "stopgap measure." So, Tuesday Morning contracted with Labor Ready, a temp staffing firm, for help. One of the individuals Labor Ready sent to work at Tuesday Morning was Matthew Faush. Faush was an employee of Labor Ready, and only worked at the Tuesday Morning store for a few days. He claimed that while there, he and other African-American "temp" employees were subjected to racial slurs and abuse by white workers and the manager of Tuesday Morning. Faush filed suit against Tuesday Morning under Title VII and the PaHRA, claiming he was an "employee" of Tuesday Morning and had suffered from unlawful race discrimination.

Tuesday Morning sought (and won) a legal ruling from the trial court dismissing Faush's case on the basis that Faush was not its employee.

The Third Circuit disagreed.

After examining all the facts, the Court held that while Labor Ready set Faush's pay rate, paid his wages, taxes, and social security, and maintained his workers' compensation insurance, those factors did not foreclose Tuesday Morning's classification as Faush's "employer." Specifically, the Court noted that Faush worked exclusively at Tuesday Morning's store and Tuesday Morning assigned Faush all of his job tasks, which were the same or similar to those Tuesday Morning assigned its regular employees. Tuesday Morning supplied Faush with all of the tools and materials he needed to complete his assignments, verified his working hours, directly supervised his tasks, and provided him with site-specific training. The Court also found that by because Tuesday Morning paid Labor Ready an hourly rate that was dependent upon the number of hours Faush worked (including any potential overtime), Tuesday Morning was really "indirectly pa[ying] [Faush's] wages, plus a fee to Labor Ready for its administrative services." The services contract between Labor Ready and Tuesday Morning also provided that Tuesday Morning retained ultimate control over whether Faush was permitted to work at its store, and could request a replacement employee for Faush at any time. The agreement even referred to Faush (and all of the other "temp" employees supplied by Labor Ready) as "Temporary Employees,"of Tuesday Morning, and required Tuesday Morning to maintain a workplace that was "free from discrimination and unfair labor practices," in compliance with "all applicable federal, state and local laws and regulations concerning employment," including Title VII. The Court thus held that it was ultimately up to a jury to determine whether, on these facts, Tuesday Morning was Faush's "employer."

This case serves as a stark reminder for employers that sometimes, employees can have two "masters" (or as the law refers to it, "joint employers.") Just because an employer brings on a worker from a temp agency on a short-term assignment and the worker gets his/her paycheck and W-2 from the temp agency, does not automatically mean the employer is immune from claims under the federal and state anti-discrimination laws.

So, the take-away practice tip for employers here is: make sure to treat your "temp" workers the same way you treat your regular employees, because at the end of the day, the law may already be doing so.

When Non-Competes are Non-Specific, Bad Things Happen

There are not many things in business as bad as a former employee setting himself or herself up in direct competition with his or her former employer. It's worse, however, when the former employee is permitted to do so in the face of a non-compete agreement that the employer originally thought was air-tight. 

Such was the scenario that Boyds clothing store recently found itself in, when it tried to prevent one of its former men's and women's footwear floor managers from opening up his own shoe store in Philadelphia. That former employee had previously signed a non-compete agreement with Boyds, which prevented him from:

"directly or indirectly, individually or as a partner or as an agent, employee or stockholder of any corporation or otherwise. . . [s]olicit or accept a job offer from another men's and or women's retail clothing company who engages in the sale of men's and/or women's clothing that is within a (50) mile radius,"

of any Boyds' store, following the end of his employment.

Pretty straightforward, no?

Not quite. 

The Pennsylvania Superior Court disagreed with Boyds' contention that the language above prevented the former employee from starting up his own shoe store. Distilled to its core, the Court held that by going into business for himself, the former employee had not "solicited" or "accepted" a job offer from a competitive retail clothing store. Not willing to accept form over substance, the Court rejected Boyds' argument that the former employee's own shoe store—a separate legally incorporated entity—had, in effect, "offered" him a "job," upon its creation, which the former employee then "accepted," placing him in violation of the non-compete agreement. Instead, the Court found that the plain language of the non-compete agreement simply did not prevent or preclude outright ownership of a competing business; rather, it prohibited only soliciting and accepting a job offer, not staring up one's own establishment. Those are two different things. 

The lesson of this case should be obvious; non-compete agreements (like all legal contracts, for that matter) should say what is meant and mean what is said. That maxim, unfortunately, is often elusive in the the world of highly-convoluted, grammar-strained legal writing, which attempts encompass all known scenarios and possible outcomes by employing broad, generic, and occasionally obtuse language. But it doesn't have to be that way. Just because a legal document—whether a non-compete agreement, employment contract, or independent contractor agreement—carries with it binding obligations and requirements under the law, doesn't mean that it needs to be written like dusty law textbook. Contracts such as these should employ simple, non-technical language that is capable of being both easily read and easily understood, and is not subject to questionable interpretations. Similarly, over-arching concepts and descriptive scenarios should be espoused in favor of plain-English statements of intent and direction. 

If Boyds had truly wanted to prevent its former employees from starting up their own clothing businesses down the block and siphoning away potential customers, it should have written its non-compete agreement to say exactly that. For example, "after termination of employment with Boyds, the employee agrees not to own, control, or manage any men's or women's retail clothing business located within 50 miles of any Boyds' store," is easy-to-understand language that could have accomplished Boyds' intent, protected its legitimate business interests, and avoided the exact scenario it now finds itself it. 

Oh, and it probably would have saved Boyds a lot of money in attorneys' fees, as well. 

Tip of the Day: If You Are a Teacher, Don't Go Online and Call Your Student a "Lazy A**hole."

Sounds like self-evident advice, no? Well, to Natalie Munroe, it wasn't. 

Munroe was an English teacher at Central Bucks School District who, in 2009, began writing her own personal blog, which was intended to be maintained primarily for her friends, not the public at large. 

In 2010, Munroe took to her blog and wrote an article in which she identified a list of suggested comments she believed teachers should include on their students' report cards in order to more accurately reflect what those teachers "really want to say to [those] parents." Her suggestions included comments such as:"has no business being in Honors," "dunderhead," "rat-like," "liar and cheater," "unable to think for himself," "tactless," and "lazy asshole." 

A few months later, Munroe composed another blog post where—in the midst of also complaining about the temperature her classroom was kept at and which musical artists she found loathsome—she griped about "an obnoxious kid" in her class, and about another child whom she referred to as a "jerk," for missing an assignment after being out of school for 3 days because his family went on vacation.

The content of Munroe's student-related blog postings came to light following an investigation by a local newspaper. After word of Munroe's blog posts made the rounds through the student body, the parents, and the administration, Munroe was eventually fired. 

Big shocker. 

Following her unceremonious dumping by the School District (some might call it "karma"), Munroe sued, arguing that the School District had unlawfully violated her First Amendment right to free speech by firing her because of the contents in her blog. 

The Third Circuit Court of Appeals recently disagreed, holding that the First Amendment provided Munroe no protection from termination due to the contents of her blog.

Unlike private-sector workers, employees of a public employer (like a school district) continue to enjoy a First Amendment right to free speech, and do not surrender that right simply because they choose to work for the government. That right, however, is not absolute. As an employer, the government has legitimate interests in maintaining the efficient administration of the workplace, and ensuring that public employee speech does not interfere with the performance of employee job functions. So, a public employee's speech only finds protection under the First Amendment if it: (1) involves a matter of public—as opposed to private—concern; and (2) the government lacks an adequate justification for treating the employee differently than the general public based upon its needs as a employer. 

In its decision, the Third Circuit first found that the contents of Munroe's blog failed to qualify as speech involving a public concern. Even though portions of her blog discussed the education of her students and the operations of the Central Bucks School District in general, the majority of its contents—when viewed as a whole—addressed merely private issues, such as what types of musical artists Munroe disliked, pie recipes, and movie reviews. Hardly the stuff of vigorous public debate. Moreover, even if Munroe's blog contents had satisfied the "public concern" requirement, the Court held that her First Amendment retaliation claim still failed, inasmuch as the School District had established that the notoriety garnered by Munroe's now-infamous online rantings had disrupted the work of both the student body and the administration. As the Court put it: "Munroe's various expressions of hostility and disgust against her students [disrupted] her duties as a high school teacher and the functioning of the School District." Because the Court determined that Munroe could not satisfy either element identified above, it held that she enjoyed no First Amendment protection from termination due to the contents of her blog.

The take-away for governmental employers here is that while claims of First Amendment protection by public employees are never cut-and-dry, speech that may appear on its face to touch on a matter of public concern does not automatically entitle the speaker to constitutional job security, nor does it eliminate any disciplinary recourse by the employer. 

The moral of Munroe's story for employees (whether public or private) is: be extra, extra careful about what you put online, even if what you post is only intended for a selective audience. The Internet is not "private" by any stretch of the imagination, even if you label something as so. Basically, if someone other than you can read what you wrote, then chances are your employer might read it some day, as well. So, if you cannot resist the urge or temptation to write something online, edit it thoroughly, and err on the side of omission rather than inclusion. You may also want to take the time to have someone else read it before you click "post," just to be sure.

Unless, of course, you are just a "lazy asshole."

Federal Contractors Required to Provide Paid Sick Leave Starting in 2017

This past Monday, President Obama signed an Executive Order that, beginning January 1, 2017, mandates all federal contractors and subcontractors to provide up to 30 hours of paid sick leave for their employees. Workers for contractors subject to this Executive Order will be entitled to earn 1 hour of paid sick leave for every 30 hours of work performed, up to a maximum of 56 hours (7 days) of paid sick leave per year. 

Workers who earn paid sick leave will be entitled to use that time to cover absences resulting from: 

1. illnesses, injuries, or medical issues; 
2. the need to obtain diagnoses, care or treatment from a healthcare provider; 
3. the care for a child, parent, spouse, domestic partner or "any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship" [read, non-adopted step-children, step-parents, etc.], who is seeking a medical diagnosis, or is in need of medical care or treatment; or
4. domestic violence, sexual assault, or stalking.

If a federal contractor already has a collective bargaining agreement in place, or is subject to a state law that provides greater mandatory leave entitlements than this Executive Order, then the provisions of the collective bargain agreement or state law will govern. 

If you are an employer who does any contract work with any federal agency, these requirements will start appearing in your contracts after January 1, 2017, so plan accordingly as that date nears.

Remember also that the provisions of this Executive Order do not supplant or supersede a qualifying employer's obligations to provide reasonable accommodations to a disabled employee under the Americans with Disabilities Act, or provide eligible workers with FMLA leave when necessary. Beginning in 2017, these new paid sick leave requirements will need to be incorporated into federal contractors' existing legal leave obligations. For example, even though federal FMLA leave is not mandated to be paid, if an employee of a federal contractor accrues 56 hours of paid sick leave time under this Executive Order, then takes FMLA leave for his or her own serious health condition, the first seven days of the FMLA may have to be paid. Federal contractors will have to decide whether they want to implement new policies to address these types of issues, such as requiring employees to exhaust all accrued paid-sick-leave under this Executive Order while on an FMLA-qualifying leave. 

Federal Judge Allows Uber Drivers to Sue as a Class

Yesterday, Judge Edward Chen of the U.S. District Court for the Northern District of California partially certified a class of potentially thousands of Uber Drivers in a wage and hour suit where four plaintiffs—all current or former drivers for Uber—claimed that they were misclassified as independent contractors and were not permitted to keep all tips given to them by customers. Full story here: Uber Drivers' Labor Lawsuit Granted Class Action Status in California.

This case (although on a large scale), coupled with the recent Administrator's Interpretation by the U.S. Department of Labor Wage and Hour Division that declares "most workers are employees," under the federal Fair Labor Standards Act, illustrates the importance of making sure workers are properly classified as employees or independent contractors, depending upon their job duties, responsibilities, and the level of control over them exercised by the business. 

Are your workers properly classified? When was the last time you engaged in a full-spectrum classification review of all workers? Given the potential liabilities at stake, you might want to be "Uber" sure. 

Looking For a Job in NJ? Don't Worry - Your Facebook Password is Safe.

Last Thursday, New Jersey Governor Chris Christie approved a new law that prohibits private employers in the Garden State from requiring job applicants to disclose their social media usernames and passwords as a condition of getting a job.  The new law carries with it civil penalties of up to $1,000.00 for the first violation and $2,500.00 for all subsequent violations and does not allow applicants to waive the protections afforded them by the legislation. 

But, before all you job-seeking N.J. readers out there throw your hands in the air and go buck-wild on Facebook, be careful.  The new law does not prevent potential employers from: (1) asking whether you have a social media account; or (2) searching for and viewing anything on your social media pages that is accessible to the public. 

So, this new law notwithstanding, it is still a good idea to think before you Tweet.  Your new job might still depend on it.  

When You Should Put "Brazilian Waxed" On Your Resume.

How many times have you been told that your employment prospects hinge upon the style of your under-there-hair?  Well, this woman's did... No Brazilian Wax? No Job!

Jennifer Finley is now suing for sexual harassment and discrimination, arguing that her employer unlawfully tried to force her into baring her genitals for cosmetic alteration by her co-workers and required her to give a Brazilian Wax to one of her co-workers, as well.

Putting aside the fact that her employer was called the "European Wax Center" (and we all know those wacky Europeans have different attitudes about ones' nether-regions), what do you think about Jennifer's lawsuit?  Do you think what she was asked to do constitutes unlawful sexual discrimination or harassment?

Think You Were Retaliated Against? Better Be Sure.

In the world of employment law, retaliation claims are often thought of by many attorneys as the most important or critical aspect of discrimination claims.  Many times, an aggrieved employee can wind up being successful on his/her claims for retaliation even when his/her claims for discrimination or harassment have come up short.  We may see that trend start to change, however. 

Today, in the case of University of Texas Southwestern Medical Center v. Nassar (here), the U.S. Supreme Court held that in order to be successful for a claim for retaliation under Title VII, the employee has to prove that retaliation was the "but for" cause of the adverse employment action.  What does this mean in real life?  Essentially, a plaintiff-employee who claims that his/her employer retaliated against the employee for engaging in protected activity under Title VII, or for filing a charge of discrimination against the employer, must now be able to convince a jury that it was the plaintiff's activities, and not some other reason or issue, which prompted the employer to take the action it did.  Unlike a claim for discrimination, in which an employee can prevail by showing that the employer's adverse action was simply motivated by discriminatory animus or by the employee's protected trait, an employee arguing retaliation will have to persuade a jury that no other factors prompted the employer's decision to fire, demote or otherwise discipline the employee.

In other words, for employees who believe they are or have suffered retaliation by their employers for engaging in protected activity, the hill to climb just got a little bit steeper.  

Who's the Boss?

If you were asked to identify who is your "supervisor" at work, I'm sure that many of you would do so quickly, without much hesitation or thought.  In fact, you many even name more than one person, as you might work in the type of "Office Space," environment where you have ten or twelve different "bosses."  

But, you may be surprised to find that those individuals who you may consider to be your "supervisors" during your day-to-day job, are not your "supervisors" for purposes of workplace discrimination.  Or, at least, so says the U.S. Supreme Court. 

Today, in a narrow 5-4 decision in the case of Vance v. Ball State (here), a majority of the U.S. Supreme Court held that a "supervisor," as referred to in the context of Title VII (the federal law that prohibits employment discrimination and hostile work environments), is narrowly defined as an individual who is "empowered by the employer to take tangible employment actions against the victim. . ."  In plain English, this means that in Title VII employment cases, a "supervisor" is now limited to only those individuals who have the power or authority to fire, demote or otherwise discipline the employee who complains of discrimination or harassment.  This decision eliminates from that group those people who may have the power and authority to control and direct an employee's everyday tasks or assignments at work, but who lack any disciplinary ability. 

So, take a minute to think again about the question I asked at the beginning of this article.... Has your list changed at all?  I bet it probably did. 

"Too hot" for work?

Is this sexual harassment or sex discrimination at a New York lingerie store?  You be the judge.  Click below to view the video and drop me a comment to let me know what you think.

Woman claims she was told she was "too hot" for her job

"Split Happens:" 3rd Circuit Finds Supervisors at Public Agencies Can Be Personally Liable for FMLA Violations

Yesterday, in the case of Haybarger v. Lawrence County Adult Probation and Parole, the Third Circuit Court of Appeals determined, for the first time in this Circuit, that supervisors who work at public agencies can be held personally liable for violations of the Family and Medical Leave Act (FMLA).  


The facts of this case and the analysis employed by the Court in reaching its decision are not overly exciting.  In short, Debra Haybarger worked as an office manager for Lawrence County Adult Probation and Parole, and suffered from Type II diabetes, heart disease and kidney problems.  Her health problems forced her to miss work often for medical appointments, and the Director of the Adult Probation and Parole, William Mancino, expressed dissatisfaction with Haybarger's frequent illness-related absences.  Mancino informed Haybarger that she needed to "cut down" on the days she was taking off and began to ask her why she needed to visit the doctor so much.  Haybarger was then formally disciplined by Mancino for her frequent medical absences and eventually terminated by the Adult Probation Office on Marcino's recommendation.  Haybarger then sued Lawrence County, Lawrence County Adult Probation and Parole and Marcino for various employment law violations, including the FMLA. 


After a complex procedural history, which saw many of Haybarger's claims dismissed, Marcino sought to have Haybarger's FMLA claims against him dismissed as well, arguing that the statutory language of the FMLA did not allow for personal liability.  After engaging in a thorough (and none-too-thrilling) parsing of the operative statutory language that defines who is an "employer" under the FMLA, the Third Circuit concluded that this definition includes an individual employed by a public agency who (1) exercises supervisory authority over a complaining employee and (2) was responsible, either in whole or in part, for the alleged FMLA violation.  The Third Circuit then examined the specific facts in this case and concluded that enough evidence existed to allow a jury to conclude that Marcino fit this definition as it related to Haybarger. 


What really makes this case interesting and important (aside from the fact that this issue had never been decided by the Third Circuit before), is that it widens a Circuit-split that previously existed on this question.  In its decision, the Haybarger Court noted that the Sixth and Eleventh Circuits had already arrived at the opposite conclusion - that the FMLA does not permit individual liability for supervisors at public agencies.  Additionally, the Eleventh Circuit has similarly held that there is no individual liability for public officials under the FMLA because "an individual officer lacks sufficient control over an employee's employment."  The Haybarger Court, however, rejected these rationales and instead chose to follow the lead of the Fifth Circuit, which had previously concluded that individual liability under the FMLA can attach to supervisors at public agencies.  


So, we now have at least three Circuits finding no grounds for individual public supervisor liability, and at least two that have taken the opposite tack.  With that schism, it seems likely (if not inevitable) that the U.S. Supreme Court will now have to take up this question and determine it once and for all.  As they say in show business, "stay tuned folks... there's more after this."


You can read the full Third Circuit opinion in Haybarger v. Lawrence County Adult Probation and Parole here: http://www.ca3.uscourts.gov/opinarch/103916p.pdf

US Supreme Court: First Amendment Bars Discrimination Suits By Ministers Against Religious Employers

Yesterday, in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the U.S. Supreme Court, for the first time, adopted and sanctioned the "ministerial exception" rule that has been utilized by the Federal Courts of Appeals for 40 years, which provides that the Free Exercise and Establishment Clauses of the First Amendment prohibit ministers, priests, and other religious individuals from suing their ecclesiastical employers for employment discrimination.  In short, the Court held that the First Amendment's prohibition on the government's establishment of religion and its guarantee of free exercise and worship prohibit such lawsuits because religious organizations are free to choose which ministers they want to lead and guide their congregation, without interference or the threat of forced-reinstatement or monetary damages imposed by the courts or the government. 


This case centered around Cheryl Perich, who was a "called" teacher of students from kindergarten to eighth-grade for the Hosanna-Tabor Church.  The Church has two categories of teachers that it employs: "called" teachers and "lay" teachers.  "Called" teachers are required by the Church to complete certain academic requirements, including an eight-class course of theological study at a Lutheran college or university, an endorsement of the teacher's local Church district, and the successful passage of an oral examination by Church faculty.  Once these requirements are met, the teacher may be "called" by the congregation, upon which the teacher formally receives from the Church the title of "Minister of Religion, Commissioned."  "Lay" teachers, on the other hand, are not required to be Lutheran or to be trained by the Church.  The Church only appoints "lay" teachers when no "called" teachers are available. 


Perich, as a "called" teacher, had completed all of the above requirements, and taught both religious and secular curriculum to her students at the Church.  Her duties also involved activities such as leading students in prayer exercises daily, attending weekly school-wide chapel services and even leading those chapel services approximately twice each year.  


In June of 2004, Perich was diagnosed with narcolepsy, and began the 2004-2005 school year on disability leave.  On January 25, 2005, Perich notified the school principal that she was ready to return to work.  The principal, however, informed Perich that the school had already contracted with a "lay" teacher to fill Perich's position, expressing concern that Perich would not be able to return to the classroom.  On January 30, the Church held a congregation at which the school's administrators concluded that Perich was physically unable to return to her job either that school year or the next, and requested that Perich resign from her position as a "called" teacher. 


Perich refused to resign and produced a note from her doctor indicating that she would be physically able to return to work on February 22, 2005.  On that date, Perich arrived at the school and the principal asked her to leave.  Later that day, the principal telephoned Perich and told her that she was likely going to be fired.  Perich responded that she had contacted an attorney and intended to pursue her legal rights. 


On April 10, 2005, a congregation of the Church was convened, and voted to rescind Perich's call in light of the "regrettable" actions that had occurred in February.  The next day, the school board terminated Perich's employment on the grounds of "insubordination and disruptive behavior," and because of the damage she had done to her "working relationship" with the school by "threatening to take legal action."


Perich then filed a Charge of Discrimination with the EEOC, alleging that she had been terminated from her employment in violation of the Americans with Disabilities Act (ADA).  Perich claimed that the Church had unlawfully retaliated against her for threatening to file a lawsuit under the ADA in February of 2005.


In a unanimous 9-0 decision, the Supreme Court held that Perich's suit, which originally sought reinstatement to her position as a "called" teacher, or alternative damages for back-pay, front-pay and punitive damages, was barred by the First Amendment's ministerial exception.  Chief Justice John Roberts, in writing for the Court, engaged in detailed examination of the history and origination of the First Amendment's Free Exercise and Establishment Clauses, and found that they had been adopted against the backdrop of the British Crown's historical interference and control over the appointment of ecclesiastical ministers.  


The Court also noted that its own past decisions have reinforced the rule that governmental actions that have the effect of contradicting or interceding in a religious organization's decision as to who shall serve as a minister and under what conditions or circumstances, are unconstitutional under the First Amendment.  The same holds true, the Court concluded, with employment discrimination actions brought by ministers against their former religious employers.  The Court held that: "[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision.  Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.  By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."


Finding that Perich was clearly a minister under the facts and circumstances surrounding her acceptance as a "called" teacher, and the fact that both Perich and the Church had held her out to the public as a minister during the years of her employment, the Supreme Court dismissed Perich's claim for retaliation under the ADA as unconstitutional. 


You can read the Supreme Court's full opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC here: http://www.supremecourt.gov/opinions/11pdf/10-553.pdf

Filming Co-workers In Partial State of Undress is Bad.... In Case You Didn't Know

In the legal world, common sense and the law do not always go hand-in-hand.  Sometimes what seems practically logical or predictable will not be legally sustainable (or vice-versa).  But, on those rare occasions when the law and common sense can exist side-by-side without destroying each other like sparring gladiators, it can be refreshing. 

This is one of those moments.  In the recent case of Jane Doe v. Luzerne County, the Third Circuit Court of Appeals reversed a trial court's dismissal of a claim brought by a deputy sheriff who alleged that her supervisors and co-workers in the Luzerne County Sheriff's office violated her Right to Privacy under the Fourteenth Amendment when they surreptitiously videotaped her partially nude, showed the video and still photographs to other co-workers in the department, and then stored the files on a county computer where any county employee who had access to the network could find and view them.  The district court had thrown out Jane Doe's Right to Privacy claim, finding that while the actions of Doe's supervisor and co-worker in making the video, were "likely ill-conceived and definitely poorly executed," they did not "fall within the zone of privacy protected by the Fourteenth Amendment." (Yes, you read that correctly). 

One day, Jane Doe, a Luzerne County deputy sheriff, and her partner entered a residence to serve a bench warrant, only to discover the inside of the residence strewn with garbage and at least one dead animal (a cat)  observed on the floor.  Doe and her partner soon found themselves crawling with fleas.  They radioed back to the Sheriff's Department for instructions on how to handle the flea exposure, and were told to proceed to a local Emergency Management Building (EMB), and wait there in their police cruiser until EMB personnel could construct a temporary decontamination shower and until their supervisors arrived.

After arriving at the EMB, Doe and her partner were met by Arthur Bobbouine, Chief Deputy of the Department and Deputy Ryan Foy, both of whom were Doe's supervisors.  Foy brought a video camera and immediately began to film Doe and her partner, who were still sitting in their police cruiser with the windows rolled up.  Foy testified that he was videotaping the proceedings for training purposes, and both Bobbouine and Foy instructed Doe and her partner that they had to remain inside the cruiser until the decontamination shower was constructed.  

Unfortunately, the EMB personnel were unable to construct the decontamination shower, so Bobbouine instructed Doe and her partner to drive to a nearby hospital, which was equipped with a decontamination facility.  After getting to the hospital and sitting in the cruiser for another forty-five minutes (as ordered), Doe finally entered the hospital with Foy videotaping her the entire way.  Doe testified that throughout her time in the cruiser, both at the EMB and the hospital, and during her walk into the hospital, she repeatedly asked Foy to stop filming, but he refused, stating it was for training purposes. 

Doe proceeded to the decontamination shower room, closed the door behind her, undressed and showered without incident.  When she finished showering, however, she noticed that there were no towels in the decontamination area - only a roll of thin tissue paper, of the kind that covers examination tables in doctors' offices.  A female Sheriff's Deputy, Joyce, instructed Doe through the closed door to wrap the hospital paper around her private areas so that Joyce could enter the room, examine Doe and ensure that all of the fleas had been removed.  Doe wrapped the paper around her private areas, but testified that either the paper itself was semi-transparent, and/or that her wet body caused the paper to become semi-transparent after she wrapped it around herself.  

Joyce entered the decontamination room, and closed the door behind her, but was unable to lock it, as the door was not equipped with a lock.  With Doe standing with her back to the door, Joyce began to inspect Doe for fleas.  Doe testified that at this point, most of her back, shoulders and legs were completely exposed, with only the semi-transparent paper wrapped around her buttocks and breasts. 

As Joyce was examining Doe for fleas, Foy opened the door to the decontamination room approximately one foot and began surreptitiously filming Doe.  Doe was then startled to hear Bobbouine's voice behind her saying "What's that shit all over your back?" in a reference to Doe's back tattoo.  Doe instinctively turned, saw the two men and yelled at them to leave the decontamination room.  Doe later testified that the video captured someone saying that he could see her "boobies," and that somebody should grab something to "cover [Doe] up."  Doe also testified that her buttocks were visible through the wet paper and that Bobbouine had made a statement (also allegedly captured on video) that he "could see [Doe's] ass."  

Joyce again closed the door to the decontamination room behind the men, and finished her examination of Doe.  After which, Doe left the hospital in scrubs. 

Later that same day, Foy uploaded the video he took of Doe onto his County work computer and showed the footage to several male and female officers.  At least one officer testified that Foy had displayed a still image of Doe's bare buttocks.  Foy then saved several still images (including one showing the tattoo on Doe's back) and the video he took that day in a public computer file, entitled "Brian's ass," which Doe testified could have been viewed by anyone who had access to the Luzerne County computer network.  Of the two still images Foy saved that depicted Doe, both showed the visible outline of her buttocks, covered only by thin, wet hospital paper. 

Doe sued the County, claiming that the actions of Foy and Bobbouine violated not only her Right to Privacy under the Fourteenth Amendment, but also her right to be free from unreasonable searches and seizures under the Fourth Amendment.  Doe also claimed that the County was liable for an alleged failure to train their officers. 

On appeal, the Third Circuit held that, on these facts, the district court committed error by dismissing Doe's Right to Privacy claim.  While noting that "the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit," the Court unambiguously found that "Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex," and that the facts did not "support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy opening the door or filming the events inside the Decontamination Area."  The Court noted that there was also a dispute of material fact as to which of Doe's body parts were exposed to Bobbouine and Foy - Doe had presented evidence that her unexposed breasts and buttocks were revealed to Bobbouine and Foy, while the County had argued that only Doe's back, shoulders, arms and legs were exposed.  As such, the Court determined that dismissal of Doe's claim in light of this factual dispute was improper. 

The Court also found that the following factors all weighed in favor of finding a Right to Privacy for Doe under these circumstances: (1) the video and pictures may have included images of Doe's exposed breasts and/or buttocks; (2) the potential harm to Doe of dissemination of non-consensual disclosure of those images or video over the Internet was great; (3) the context of the disclosure of the video and images at her work and to her co-workers could increase the harm suffered by Doe; and (4) there were inadequate safeguards imposed against non-consensual disclosure because Foy had uploaded the video and images to a public file where anyone with network access could view them. 

Consequently, the Court remanded the case back to the trial court and allowed Doe's Right to Privacy claim to continue. 

So, in case anyone out there was fuzzy on this issue, videotaping your co-workers partially nude is a no-no.  

You can read the Third Circuit's full opinion in Doe v. Luzerne County here: http://www.ca3.uscourts.gov/opinarch/103921p.pdf

Legal Challenge to Haverford Township Anti-Discrimination Ordinance Continues

Back on February 15, I reported on the new anti-discrimination ordinance passed by Haverford Township in Delaware County, PA, which not only makes it illegal for employers doing business in Haverford Township to discriminate against employees or applicants on the grounds of sex, religion, race and national origin, but also added sexual orientation, gender identity and gender expression as protected classes - something that neither Pennsylvania nor the Federal Government has yet to do.

Since then, a Haverford Township resident, Fred Teal, has filed a lawsuit challenging the validity of that Ordinance, arguing it is illegal because the Township allegedly failed to follow the proper procedures in adopting it.  Mr. Teal has also argued that two of the Haverford Township Commissioners should have recused themselves from the proceedings surrounding the adoption of the Ordinance because they have homosexual relatives.  

The Delaware County Daily Times is reporting that on September 27, 2011, Judge Pagano of the Delaware County Court of Common Pleas overruled the Township's preliminary objections to Mr. Teal's action, which means that for the moment, the lawsuit will continue.  The Township must now file an Answer to Mr. Teal's Complaint. 

You can read the full story from the Delaware County Daily Times here: http://delcotimes.com/articles/2011/10/10/news/doc4e92630eb4ce5699604790.txt?viewmode=fullstory

In Title VII Cases, Sometimes It's All About the Numbers. . .

On September 28, 2011, in the case of Meditz v. City of Newark the Third Circuit Court of Appeals found that the trial court had improperly dismissed a lawsuit against the City of Newark, which alleged that the City's residency requirement for its non-uniformed employees was unlawful under Title VII because it created an employment bias against white, non-Hispanic applicants. The Court of Appeals held that the trial court had failed to properly evaluate and consider the weight of the statistical evidence that had been presented by the plaintiff. In April of 2007, Gregory Meditz, a white male who resided in neighboring Rutherford, New Jersey, applied for a non-uniformed job with the City of Newark. Meditz was turned down for the job because he did not live in the City of Newark, and thus did not qualify for employment under a City Ordinance that required all non-uniformed City personnel to live within the City limits. Meditz sued, claiming that the City's residency requirement for its non-uniformed employees was discriminatory and unlawfully barred him from qualifying for a non-uniformed job with the City. Specifically, Meditz argued that the residency requirement worked a disparate impact on white, non-Hispanic job applicants because the racial make-up of the population of Newark did not reflect the racial make-up of the surrounding labor market. In support of his claims, Meditz produced statistical data that he gathered from publicly available sources, which revealed that in 2007, only 9.4% of the non-uniformed employees of the City of Newark were white, non-Hispanic, while 28.31% of the City's uniformed employees (who are not subject to a residency requirement) were white, non-Hispanics. Meditz also compared the statistics of the racial composition of the City's non-uniformed employees with the racial composition of the non-uniformed employees from the County of Essex, which maintained its County seat within the City of Newark. This comparison showed that 42.96% of the non-uniformed employees who worked for the County were white, non-Hispanics. Meditz also introduced evidence that in 2005, the percentage of white, non-Hispanics that constituted the non-uniformed employees of Essex County and 5 neighboring counties, ranged from 48.09% to 86.49%, with the percentages of white, non-Hispanics employed in the private labor force in those same counties being only slightly lower. The trial court, however, granted the City's motion for summary judgment, and tossed Meditz's lawsuit, concluding that "these statistics, standing alone, do not constitute sufficient evidence of a significantly discriminatory hiring pattern." On appeal, the Third Circuit reversed, finding that the trial court had misapplied the law and had failed to lend the appropriate weight to Meditz's statistical evidence. Specifically, the Court held that "Meditz offered statistical evidence showing that the percentage of white, non-Hispanics employed by Newark was lower than the population of white, non-Hispanics in the general population of Newark. Meditz also offered statistics showing the percentage of white, non-Hispanics in surrounding areas both for the general population and for the private and government work forces. Finally, Meditz offered evidence of the percentage of white, non-Hispanics employed by the Essex County government in Newark. Out of all these percentages, the lowest was the percentage of white, non-Hispanics employed by the City of Newark. This compilation of statistics supported Meditz's claim that white, non-Hispanics were under-represented in Newark's non-uniformed work force." This case provides an excellent illustration of how a disparate impact theory of discrimination under Title VII can be invaluable tool for an individual who believes he or she has been subjected to unlawful discrimination, because in these cases, evidence of discriminatory intent or bias on behalf of the employer is not required. All that a plaintiff needs in order to be successful is to establish a differential employment outcome or treatment that is based upon race, sex, religion, or national origin, which can be proven through statistical analysis and statistical deviations. After all, the numbers don't lie. You can read the Third Circuit's full opinion in Meditz v. City of Newark here: http://www.ca3.uscourts.gov/opinarch/102442p.pdf

Supervisor who is terminated for asking subordinates for a loan is not entitled to unemployment compensation

In Weingard v. Unemployment Compensation Board of Review, No.: 2729 C.D. 2010 (Pa. Cmwlth. 8/10/2011), the Commonwealth Court held, in a matter of first impression, that a supervisor who is fired for requesting a substantial loan from a subordinate is not entitled to receive unemployment compensation, even if the employer does not have a specific rule prohibiting the solicitation of loans in the workplace. The Court held that such a request constitutes a disregard of the standards of behavior an employer has a right to expect from its employees.

In this case, Weingard learned that a co-worker was selling a motorcycle for $1,000.00 and he wanted to buy it. But, due to his poor credit history, Weingard knew that he would be unable to obtain a loan from a bank. So, Weingard asked his supervisor for a $1,000.00 loan and was turned down. Weingard then asked five other employees - at least one of whom was Weingard's subordinate - if he could borrow the $1,000.00 and was similarly rejected. One of the employees who was supervised by Weingard complained to Weingard's supervisor about Weingard's request to borrow money, indicating that it made her uncomfortable. The employer conducted a three-week investigation into the matter, after which it terminated Weingard for his requests to borrow money, deeming such an action to be "coercive."

The employer's handbook did not contain any specific rules regarding the lending or borrowing of money between supervisors and subordinates, but did prohibit employees from "operating or acting in any manner that is contrary to the best interests of Employer."

Weingard then filed for unemployment compensation benefits. The Unemployment Compensation Referee granted benefits to Weingard, finding that the employer had failed to meet its burden to establish the existence of a rule regarding the lending or borrowing of money between supervisors and subordinates, and that a violation of that rule could result in termination.

On appeal, the Unemployment Compensation Board of Review reversed, holding that the employer had in fact established the existence of a policy that prohibited Weingard from acting in a manner that was contrary to the employer's best interests. The Board thus denied Weingard unemployment compensation benefits.

The Commonwealth Court affirmed the decision of the Board that denied Weingard unemployment compensation benefits, but did so on different grounds. The Court found that employer's general policy that prohibited employees from "operating or acting in any manner that is contrary to the best interests of Employer," was "so general as to be meaningless to this appeal." The Court held that the Board committed error when it found that Weingard had knowingly violated this vague standard because "[Weingard] testified that he did not know there was a policy prohibiting him from soliciting loans from co-workers, and he did not believe that asking another employee for a loan harmed Employer's interest in any way. Employer provided no evidence to the contrary." Thus, the Court found the Board's conclusion that Weingard had committed willful misconduct by knowingly violating a work rule, was erroneous.

The Court nevertheless determined that Weingard was ineligible to receive unemployment compensation benefits. Examining for the first time whether a supervisor's request of a substantial loan from a subordinate constitutes willful misconduct, the Court found that in asking to borrow $1,000.00 from a subordinate, "[Weingard] used his position of authority in an unseemly way. He may not have used overt threats or direct coercion, but that fact is not dispositive of the issue. [Weingard] held the upper hand in the relationship with the employees he supervised. . . There is an unspoken, and implicit, coercion when a boss makes a request for a significant loan of an employee under his supervision." Therefore, the Court concluded that while Weingard may not have violated a specific written rule of his employer regarding money-lending between employees, his conduct "violated the standards of behavior his Employer had a right to expect," from its employees, which constituted willful misconduct that disqualified him from receiving unemployment compensation benefits.

The moral of the story? If you need a loan, go to a bank.

You can read the WeingardCourt's full opinion here: http://www.courts.state.pa.us/OpPosting/Cwealth/out/2726CD10_8-10-11.pdf

Vote for "Pa Employment Law" as one of ABA's top 100 blawgs for 2011!

The American Bar Association is one again compiling its list of the top 100 legal blogs in the country and is looking for nominations.

If you like "Pa Employment Law" then please take a few minutes and vote!

Just click on this link: http://www.abajournal.com/blawgs/blawg100_submit/, fill out the short form and click submit!

Thanks!!

Think supervisors and employers are immune from retaliation claims because employee discipline is recommended by an internal review committee? Think again.

In McKenna v. City of Philadelphia (8/17/2011) the Third Circuit Court of Appeals held that the Philadelphia Police Department's use of an internal disciplinary review committee to recommend an officer's termination did not insulate that officer's supervisor, or the City itself, from charges of unlawful retaliation and termination. In so doing, the Court analyzed and applied the recent decision of the U.S. Supreme Court in Staub v. Proctor Hospital, in which the Court held that an employer may be held liable for unlawful discrimination based upon the discriminatory motivation of an employee who influenced, but did not make, the ultimate adverse employment decision. (To read more about the Staub decision, see my earlier post on this blog here: http://paemploymentlaw.blogspot.com/2011/03/us-supreme-court-adopts-cats-paw-theory.html

McKenna involved a former Caucasian Philadelphia police officer, Raymond Carnation, who testified that he used to work in a police squad that experienced significant internal racial tensions. Shortly after Sgt. John Moroney was named as the permanent supervisor of Carnation's squad, Carnation complained to Moroney of the issues involving racial tensions within the squad. Carnation also complained to the local district commander, Captain William Colarulo, about the racial tensions. When nothing appeared to be happening to change the environment within the squad, Carnation told Colarulo that he thought Moroney was condoning racism by failing to address the issues Carnation had complained of. Carnation also told Moroney that he thought Moroney was contributing to the problems by failing to take action.

As a direct consequence of making these complaints, Carnation testified that he was subjected to retaliation, such as being assigned unassisted duty in dangerous neighborhoods in unpleasant weather conditions. In another instance, Carnation testified that Colarulo told him that if Carnation filed an EEOC complaint, Colarulo would make Carnation's life "a living nightmare," and ordered Carnation to apologize for making his previous accusations.

In May of 1997, Carnation attempted to call Moroney at the district, in order to speak with him. Carnation received a telephone call back from Colarulo, who ordered Carnation to "not call Sgt. Moroney." The next Saturday, however, Carnation called Moroney and spoke with him about his concerns surrounding the racial issues in the squad. The next day, Carnation called Colarulo, who was off duty and on vacation for the Memorial Day holiday, and told Colarulo that he had spoken to Moroney and resolved many of his concerns, but still wanted to schedule a meeting between all three of them. Colarulo refused to schedule a meeting.

After the Memorial Day holiday, Colarulo served Carnation with disciplinary papers relating to the phone calls that had been placed over the weekend, and brought charges of insubordination, using profane or insulting language to a superior officer, and neglect of duty for failing to comply with oral orders of a superior, against Carnation.

As per Philadelphia Police Department procedures, the charges were then sent to an internal disciplinary board called the "Police Board of Inquiry" or "PBI." The PBI is a three-member panel of police officers, which listens to the evidence before it and then decides what proper sanction, if any, that it will recommend to the Police Commissioner, who holds the power to impose any recommended sanctions.

Carnation pled "not guilty" to the charges against him, and a hearing was held before the PBI, at which Carnation was represented by private counsel, and testified on his own behalf, as did Colarulo. The PBI found Carnation guilty of all three counts brought by Colarulo and, on its own initiative, added a fourth charge of conduct unbecoming an officer. The PBI then recommended Carnation's termination to the Police Commission, who approved the same.

Carnation subsequently filed suit against the City of Philadelphia, alleging unlawful retaliatory termination in violation of Title VII. The jury found that Carnation's termination constituted illegal retaliation that stemmed from his protected activity of complaining about racial discrimination to Colarulo and Moroney during the Memorial Day weekend, and awarded Carnation $2,000,000.00 in compensatory damages.

The City appealed from the district court's decision upholding the jury verdict, arguing that the City could not be held liable for any retaliatory animus held by Colarulo against Carnation, as a matter of law, because Carnation's termination was not carried out by Colarulo. Rather, Carnation's termination was carried out by a separate, internal disciplinary board that made its recommendation to dismiss Carnation only after receiving testimony and evidence in an unbiased, neutral due-process hearing.

The Court of Appeals disagreed and affirmed the jury's verdict against the City. The Court rejected the City's arguments that the use of the PBI insulated the City and Colarulo from liability as a matter of law. Specifically, the Court recognized that in Staub, the Supreme Court held that the test for analyzing whether an employer can be held liable for the discriminatory or retaliatory animus of a non-decisionmaker was not whether the non-decisionmaker exerted "singular influence," over the eventual adverse employment action, but rather whether the non-decisionmaker's animus was the "proximate cause," of the adverse employment action suffered by the employee. The Third Circuit noted that "proximate causation requires only some direct relation between the injury asserted and the injurious conduct alleged and excludes only those links that are too remote, purely contingent, or indirect." The Court held that the record in this case was insufficient to establish that the PBI's role in Carnation's dismissal rose to such a superseding level that it rendered any retaliatory animus harbored by Colarulo remote, purely contingent or indirect. Rather, the Court held that on the evidence presented, the jury was justified in finding that Colarulo's retaliatory animus "bore a direct and substantial relation to Carnation's termination and that the PBI's recommendation was not independent and was foreseeable." This conclusion was further supported by the Staub decision, in which the Supreme Court itself noted that "[a] supervisor's biased report may remain a casual factor if [an] independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified. . ."

This case illustrates that, following the rule set forth by the Supreme Court in Staub, an employer cannot rely upon the use of an internal disciplinary review process to always insulate it from liability for discrimination or retaliation under Title VII, even when the individuals who participate in the review process have no relation to the employee or to the supervisor who may have recommended disciplinary action.

To read the Third Circuit's full opinion in McKenna v. City of Philadelphia, click here: http://www.ca3.uscourts.gov/opinarch/093567p.pdf

U.S. Supreme Court: Wal-Mart Class Action Too Big; No Commonality

In the closely watched case of Wal-Mart Stores, Inc. v. Dukes, et al., the U.S. Supreme Court on Monday torpedoed what would have been the largest class-action lawsuit in American history against the nation's largest private employer.

In a 5-4 decision, the Court held that the proposed class, which would have consisted of approximately 1.5 million current and former female employees of Wal-Mart, who have alleged the presence of a corporate culture of gender and sex discrimination against women, failed to meet the "commonality" requirement for permissible class certification.

"Commonality" is a prerequisite set forth in the Federal Rules of Civil Procedure, which requires that there exist "questions of law or fact common to the class," before a group may properly be certified as a class. One of the tests by which commonality may be established is by setting forth "significant proof" that an employer "operated under a general policy of discrimination."

In short, the majority held that significant proof of a "general policy of discrimination" on behalf of Wal-Mart was entirely absent in this case. The majority noted that not only was plaintiff's sociological expert unable to provide a definitive opinion on this issue, but also that Wal-Mart's corporate policy is to provide each of its local supervisors with discretion over employment matters - a policy that is, by definition, the opposite of having the type of uniform employment practice that is needed to establish commonality for purposes of class certification.

The majority also held that the plaintiffs had failed to identify and challenge a specific employment practice that was alleged to be discriminatory and which was common to all 1.5 million class members.

The Court's decision to deny certification in this case is significant in that it will have a significant impact upon future discrimination claims against large employers, undoubtedly making it harder for plaintiffs to achieve class-status. Class-actions are, in many instances, the only real vehicles by which discriminatory policies or actions by large or multi-national employers can be successfully challenged. As compared to small, individual claims, class-actions with numerous class members often carry with them the prospect of very large verdicts that can quickly change (or destroy) a corporate image and bottom-line. Additionally, the economics of many discrimination claims (such as wage-and-hour claims) are simply not worth an attorney's time or money prosecuting on behalf of a single employee, as the potential recoverable damages often cannot justify the time and expense necessary to prevail through trial. Unfortunately, if class-actions now become harder to certify and maintain following this case, the sad truth is that many instances of discrimination or employment law violations may simply go unchecked or unchallenged.

You can read the Supreme Court's full opinion in Wal-Mart Stores, Inc. v. Dukes, et al. here: http://www.supremecourt.gov/opinions/10pdf/10-277.pdf