Supreme Court to Consider Accommodation for Pregnant Employees, FLSA Post-Shift Coverage

October 10, 2014

Among several human resource cases to be decided in the U.S. Supreme Court's new term, which opened this week, the Court will decide whether the Pregnancy Discrimination Act (PDA) requires employers to accommodate pregnant employees with lighter duty positions when other non-pregnant employees are provided such positions.  The PDA does not explicitly require employers to offer light duty to pregnant workers.  Among the other cases to be decided:

  • The justices will decide whether the Fair Labor Standards Act (FLSA) requires an employer to pay employees working in a retail warehouse for time spent going through anti-theft security screening after their shifts.  The Supreme Court previously ruled that a 1947 FLSA amendment known as the Portal-to-Portal Act does not require payment for "postliminary" activities, unless they are "integral and indispensable" to their primary job duties.  Surprisingly, the Labor Department has weighed in on the employer's side via an amicus brief, saying the Ninth Circuit's decision, which found the time "integral" and therefore compensable, did not apply a strict enough standard for testing the directness of the relationship between the employees' principal work and the post-shift security measure.

  • The FLSA will also be the subject of a separate case on the docket determining whether the Labor Department violated the Administrative Procedures Act by reinterpreting a 2006 wage and hour opinion letter without giving the public notice and opportunity to comment.  The case has broad implications for when and how federal agencies can change guidelines they previously issued.

  • The Court will also address a circuit court split on whether or not a federal court can review whether the EEOC engaged in "good faith" pre-suit conciliation efforts with the employer to settle discrimination charges before proceeding to litigation where those efforts fail.