Supreme Court Chief Justice John Roberts described judging as calling “balls and strikes”. Last week we may have seen how one potential replacement for Associate Justice Stephen Breyer sees the strike zone on labor and employment law issues.
Last week, District of Columbia Court of Appeals Circuit Court Judge Ketanji Brown Jackson struck down the application of a management friendly “substantial impact” standard for a more employee-friendly “de minimus” standard when it came to the obligation of the federal government to bargain with employee unions over changes to working conditions.
Technically, the decision turned on the Federal Labor Relations Authority acting in an arbitrary and capricious manner in changing from the de minimus to the substantial impact standard. But in a bigger sense, the case reflects broader themes in employment law: what harms to employees done by employers can be legally actionable?
Wage and hour law: Is $125 per year “de minimus”?
The de minimus language in the federal labor case reminded me of a post I wrote in October about a wage and hour case involving Nelnet call center employees in Nebraska. The 10th Circuit Court of Appeals reversed a District Court decision finding wage loss of $125 per year due to unpaid time booting up computer and phone systems was “de minimus” and not covered by the federal Fair Labor Standards Act.
One assumption of civil litigation is that if a party doesn’t suffer economic harm, then they don’t suffer harm period. However that is not the case, at least according to black letter law.
Title VII and adverse action
In order for an employee to bring a discrimination claim an employee needs to show that an adverse action was taken by their employee. Here the standard is it doesn’t necessarily have to hit an employee in the pocket book, but it has to do more than merely make them angry. In the context of retaliation case, the retaliation has to be sufficient that it would deter a reasonable person from taking the same so-called protected activity.
Broken windows employment law?
Employment law allows employees to bring cases for small and non-existent financial damages. That’s one reason why civil rights and wage and hour laws award attorney fees to prevailing parties. Another reason supporting employees bringing suits for small and non-existent money damages is similar to the broken windows theory of policing made popular in the 1990s. Under the broken windows theory, cracking down on minor crimes deterred more major crimes. The same logic should apply when it comes to civil litigation.
But the judiciary is reluctant to bring that philosophy to employment law. The reason is the employment at-will doctrine which was created by judges in the late 19th century and has the force of law in every state except Montana. The influence of the employment-at will doctrine can influence the judiciary to overlook what they perceive to be minor harms to employees even if they are motivated by unlawful purposes.