Authors: Beth P. Zoller and Michael Cardman, XpertHR Legal Editors

As the Supreme Court begins a new term, two cases on the docket will be of particular interest to HR.

In Vance v. Ball State University, +646 F.3d 461 (7th Cir. 2011), cert. granted, +2012 U.S. LEXIS 4685 (U.S. June 25, 2012) (Case No. 11-556), the Court will likely resolve the current split among the circuit courts regarding how much authority an agent of an employer must exercise over an employee to be deemed a supervisor under Title VII of the Civil Rights Act of 1964. This issue is of primary importance when determining whether an employer can be held vicariously liable for a supervisor's actions in cases of harassment and discrimination.

In Symczyk v. Genesis Healthcare Corp., +656 F.3d 189 (3d Cir. Pa. 2011), cert. granted, +2012 U.S. LEXIS 4744 (U.S. June 25, 2012) (No. 11-1059), the Court will decide whether an offer of judgment made to a lone plaintiff in a Fair Labor Standards Act lawsuit can prevent other plaintiffs from joining the lawsuit in a collective action. A ruling in favor of the defendant would make it much more difficult for employees to file the types of multi-million dollar FLSA lawsuits that have become the norm in recent years.

The Supreme Court may also decide to add more employment cases to its schedule as the term progresses.

The Vance Case

Under existing case law in Faragher v. City of Boca Raton, +524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, +524 U.S. 742 (1998), if the perpetrator of harassment or discrimination is a supervisor, the employer is automatically vicariously liable for the supervisor's actions. If the perpetrator is not a supervisor, the plaintiff must prove that the employer was negligent and that the employer knew or should have known of the harassment or discrimination in order to be liable. This is a much higher burden for plaintiffs to meet.

Neither Title VII nor Faragher and Ellerth specifically define the term supervisor and thus the issue has been left to the circuit courts to reach their own conclusions. The 1st, 7th and 8th Circuits take the position that a supervisor under Title VII is an individual who has the direct power to hire, fire, demote or discipline those employees working in positions under them. In contrast, the 2nd, 4th and 9th Circuits have taken a broader view and held that a supervisor is any individual who has authority from the employer to direct and oversee an employee's daily work. In Vance, the Court will answer the questions of what level of authority an individual must exercise over a victim in order to be deemed a supervisor- does the individual have to have the power to hire, fire, demote and discipline the employee and directly affect the individual's terms and conditions of employment or does the individual only need to have the authority to direct the victim's daily work.

The Court will hear oral argument on the case on November 26, and employers can anticipate a decision by June 2013.

This case has broad implications for employers because if the Supreme Court adopts the position that a supervisor only needs to be an individual who has the authority to direct an employee's daily work and oversee one's actions, this is a much lower standard that may result in a greater number of cases in which an employer is automatically vicariously liable for the actions of those employees the employer would not necessarily have deemed to be supervisors. However, if the Supreme Court adopts the narrower view held by the Seventh Circuit, there may be fewer harassment and discrimination lawsuits.

Regardless, employers should aim to maintain a workplace that is free of harassment and discrimination and hold individuals at all levels accountable for their actions. Employers should make sure to implement strong discrimination and harassment polices and respond to any complaints of discriminatory or harassing behavior by taking take prompt and immediate action and instituting corrective measures.

The Symczyk Case

Under the FLSA, employees may file lawsuits as individuals or as a group, under a collective action.

When deciding whether a group of plaintiffs may proceed as a collective action, courts usually follow a two-step process.

In the first stage, known as conditional certification, plaintiffs only need to show a small amount of evidence that they were similarly situated - usually meaning they were subject to a common policy or plan. If the court finds enough evidence to conditionally certify a collective action, the plaintiffs may then send out notices to other employees inviting them to join in the lawsuit. The plaintiffs also may conduct pretrial discovery, which can help to identify additional plaintiffs and uncover potential employer violations.

In the second stage, after discovery, the court will then make a conclusive determination as to whether the plaintiffs are similarly situated. This stage is less lenient, and the plaintiffs have a higher burden of proof.

Often, as happened in the Symczyk case, a single plaintiff may file a lawsuit on behalf of himself or herself and other unnamed plaintiffs with the goal of obtaining conditional certification later and then recruiting additional plaintiffs.

But before the plaintiff in the Symczyk case could obtain conditional certification, her employer made an offer of judgment of $7,500 in unpaid wages and other costs.

The plaintiff did not respond to the offer. The employer asked the court to dismiss the lawsuit on the grounds that it was now moot under a federal rule of civil procedures, +USCS Fed Rules Civ Proc R 68. Basically, the employer argued that the plaintiff no longer had a stake or an interest in her lawsuit because she already had been offered everything she could have expected to win if she were to prevail in her lawsuit.

The plaintiff objected, calling the offer of judgment a strategic attempt to short circuit the lawsuit before the conditional certification stage. But the district court granted the motion and dismissed the case.

The plaintiff appealed to the 3rd U.S. Circuit Court of Appeals, which overturned the lower court's ruling. The Supreme Court agreed to hear the case in June. Oral arguments are scheduled for December 3.