The U.S. Supreme Court and many other courts make decisions that affect businesses and their employees. Writing about Human Resource Management (HRM) is challenging, given the constant legal changes. Of course, the Supreme Court cases affect all the states, but it is essential that we pay attention to what happens beyond the State of Texas and our 5th Circuit Court of Appeals.
Loper Bright Enterprises v. Raimondo (U.S. Supreme Court)
The hottest case in the land may throw out many of my impressions on federal agency rules, which I wrote about in July of this year. With the Chevron Deference being tossed, employers’ ability to supervise their employees might get easier. Or it might cost more, as litigation may increase regarding employees’ claims.
This decision (Loper Bright) is about administrative law and federal agencies. Along with its companion case, Relentless, Inc. v. Department of Commerce, the case overruled the principle of Chevron deference established in Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (1984), which directed courts to defer to an agency’s reasonable interpretation of an ambiguity in a law that the agency enforces. Instead of Chevron, the decision assigns the determination of congressional ambiguity to the judicial branch, with executive agency expertise being considered under the Skidmore deference.
What does all this mean? According to Ballotpedia, deference is one of five pillars vital to understanding the main areas of debate about the nature and scope of the administrative state and is a principle of judicial review. In administrative law, deference applies when a federal court yields to an agency’s interpretation of a statute that Congress instructed the agency to administer or a regulation promulgated by the agency.
And what was the Skidmore case about? It is based on a complaint on the Fair Labor Standards Act (FLSA) of 1938 for overtime while employees were on call. Swift and Co. operated out of Ft. Worth, Texas.
Skidmore v. Swift & Co. (U.S. Supreme Court)
This decision held that an administrative agency’s interpretative rules deserve deference according to persuasiveness. The court adopted a case-by-case test, the Skidmore deference, which considers the administrator’s rulings, interpretations, and opinions. The Supreme Court reversed and remanded the case for further proceedings.
Remember the case-by-case test, as it sounds like a possibility of lots of litigation. Why didn’t I get that law degree again?
After reading multiple opinions, I realized that the Chevron doctrine has been an issue for businesses for decades. Let’s face it: regulations cost money. Not to be too political, but President Trump says he wants to roll back regulatory authority if reelected. This writer believes in balances and pendulums that swing back and forth.
No one wants child labor or unsafe food or working conditions. In the oilfield, you only must meet one person injured severely from an accident, and you will know that we should not throw the baby out with the bath water.
Recently, truckers in the Permian have protested their working conditions. Those protests may be too late or just in time for litigation. Personally, from an outsider’s point of view, their working hours, including those spent “on call” (as described by the protesters), gave me some pause as to their safety and compensation.
Lastly, please do not get mad at me, but we all read Upton Sinclair’s novel, The Jungle. That novel was written in 1906 about unsafe conditions in meat packing plants. Well, it is 120 years or so later, and we still have meat packing plants, and it is still a tough job, often filled by immigrants.
Muldrow v. City of St. Louis (U.S. Supreme Court)
I reviewed this case, which favors employees who will not have to show significant harm for Title VII claims. The bottom line is to keep your employees from moving to another position, even when you do not cut their pay if it looks too much like a demotion.
Mobley v. Workday (U.S. District Court for the Northern District of California)
California is a state unto itself. An applicant sued because they stated that Workday’s AI hiring algorithms discriminated against him and others. Workday is my favorite, but before purchasing a Human Resource Information System (HRIS), ask the vendor if their software is routinely audited for discriminatory outcomes. Do your due diligence.
Jones v. Georgia Ports Authority (11th Circuit)
I always tell my clients to follow the same procedures when an employee asks for an accommodation under the Americans with Disabilities Act (ADA), or the Interactive Process. In this case, the employer terminated an employee for submitting an unsigned return to work letter. If your procedures are in writing, follow them without exception. Have a set of forms and a step-by-step guide. The employer won.
Su v. Bevins & Son, Inc. (U.S. District Court for the District of Vermont)
Loose lips sink ships. Management trashed an employee on social media after the employee won a back-pay settlement. Management gave the employees a stick with which to beat them. I teach clients to keep their mouths shut. It might be considered retaliation.
Cerda v. Blue Crab Operations LLC (5th Circuit)
There are policies and procedures for the Family Medical Leave (FML), too. I recommend that FMLA be taken in at least two- or four-hour increments. Make sure your employees know how to request FMLA. Please put it in your employee handbook. Always have an Employee Handbook.
Deyerier v. HireVue, Inc. (U.S. Court for the Northern District of Illinois)
A picture is worth a thousand words. This case is interesting because the court ruled that a hiring software’s AI-powered facial screening technology may violate Illinois’ biometric privacy law. This may have become a problem via video interviews. Add a disclaimer on how the video information will be used.
Yanick v. The Kroger Co. (5th Circuit)
The 5th Circuit, the most conservative circuit court, sided with the employee. The employee returned from FML and did not ask for any unique accommodation. The employee struggled with some tasks, so Kroger demoted the employee. Oops, Kroger should have recognized the employee’s need for special accommodations, even though the employee did not ask for any. The burden is on the employer to help the employee. Train your managers on the Americans with Disability Act and its amendments (ADA).
Fisher v. Airgas USA, Inc. (6th Circuit)
An employee failed a random drug test and was taking a hemp product after cancer treatment. The employee was fired. The employer should have checked with the testing company on the possible impact of the hemp on the drug test. Let your employee explain. And you should investigate. Occasionally, zero tolerance does not work. Learn to ask questions, listen, and give every employee their due process.
Michele Harmon
“Your employees are the heart of your organization.” Dr. Michele Harmon is a Human Resource professional, supporting clients in Texas and New Mexico that range in size from five to more than 3,000 employees. Email: micheleharmon1@gmail.com
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