US Supreme Court Watch
Pending cases at the US Supreme Court
Class action waivers – NLRA v. FAA: Epic Systems Corp v. Lewis (consolidated with two other cases) - Whether it's an unfair labor practice for an employer to require employees to agree that they will not bring a class-action or collective-action case - either in litigation or in arbitration- and whether the Federal Arbitration Act compels enforcement of an employment arbitration agreement that prohibits employees from bringing class-action or collective-action cases. Oral argument on Actober 2, 2017.
The Justice Department has switched sides at the US Supreme Court in NLRB v. Murphy Oil. After filing a petition for certiorari on behalf of the NLRB, DOJ later filed an amicus brief against the NLRB. We expect the NLRB to file its own brief in August.
Ever since D.R. Horton (NLRB 2012), the NLRB has said that it's an unfair labor practice for an employer to require employees to agree that they will not bring a class-action or collective-action case, either in litigation or in arbitration. The NLRB's jurisdiction includes non-union workplaces in the private sector, so there's an impact on over 90% of private sector employees.
Meanwhile, the Federal Arbitration Act requires courts to enforce arbitration agreements as written.
As you might expect, federal circuit courts are split. Some say D.R. Horton is simply wrong. Some say the FAA compels enforcement of an employment arbitration agreement that prohibits employees from bringing a class-arbitration, notwithstanding D.R. Horton. Others won't enforce such agreements because they interfere with employees' right "to engage in … concerted activities for the purpose of … mutual aid or protection."
The Supreme Court agreed to hear three cases that raise these issues.
One is Ernst & Young v. Morris [Cert petition] [9th Circuit opinion] [Supreme Court briefs] ("an employer violates the National Labor Relations Act by requiring employees to sign an agreement precluding them from bringing, in any forum, a concerted legal claim regarding wages, hours, and terms of conditions of employment.")
The others are NLRB v. Murphy Oil [Cert petition] [5th Circuit opinion] [Supreme Court briefs] (refusing to enforce the NLRB's D.R. Horton rule) and Epic Systems Corp v. Lewis [Cert petition] [7th Circuit opinion] [Supreme Court briefs] (class action waiver in arbitration agreement violates NLRA and is unenforceable under the FAA).
The Court has neither granted nor denied one other petition in Patterson v. Raymours Furniture Co [Cert petition] [2nd Circuit opinion] [Supreme Court briefs] (enforcing class action waiver in arbitration agreement).
Whistleblower: Digital Realty Trust v. Somers - Whether the Dodd-Frank Act's anti-retaliation provision for “whistleblowers” extends to individuals who make internal disclosures of alleged unlawful activity but do not report alleged misconduct to the Securities and Exchange Commission. [Cert petition] [9th Circuit opinion] [Supreme Court briefs]
Employment law decisions: 2016-2017
Merit System Review Board: Perry v. Merit Systems Protection Board (06/23/2017) - A Merit Systems Protection Board decision disposing of a “mixed” case (one which challenges certain adverse employment actions and also involves a claim under the federal anti-discrimination laws) on jurisdictional grounds is subject to judicial review in district court, not in the U.S. Court of Appeals for the Federal Circuit. [Details: SCOTUS: "Mixed" MSPB cases are reviewable in district court, not circuit court]
ERISA: Advocate Health Care Network v. Stapleton (06/05/2017) - ERISA's "church plan" exemption applies to a pension plan that is maintained by a church-affiliated organization even though the plan was not established by a church.
Arbitration: Kindred Nursing Centers Limited Partnership v. Clark (05/15/2017) - The Supreme Court of Kentucky's rule that the power to agree to arbitration must be unambiguously expressed in the text of a power-of-attorney document violated the Federal Arbitration Act. [Details: SCOTUS: Federal Arbitration Act kills Kentucky's clear-statement rule.]
Quashing EEOC subpoena: McLane Co. v. EEOC (04/03/2017) - A district court's decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion – not de novo. [Details: SCOTUS: Decision to quash or enforce an EEOC subpoena is reviewed for abuse of discretion]
Bankruptcy: Czyzewski v. Jevic Holding Corporation (03/22/2017) - Bankruptcy courts may not approve structured dismissals that provide for distributions that do not follow ordinary priority rules without the consent of affected creditors. Therefore, the Court reversed lower court holdings that allowed a Chapter 11 (reorganization) bankruptcy to end with a structured dismissal that totally cut out the claims of employees whose claims normally would be senior to some unsecured creditors to whom distributions were made.
President's appointment power: NLRB v. SW General Inc. (03/21/2017) - The President's appointment of Lafe Solomon as Acting General Counsel of the NLRB violated the Federal Vacancies Reform Act. He was Acting General Counsel when the President nominated him to serve on a permanent basis but the Senate did not act on the nomination. Once he was nominated, the Federal Vacancies Reform Act prevented him from performing the duties of that office on an acting basis. [Details: NLRB's Acting GC was unlawfully appointed]
Transgender restrooms: Gloucester County School Board v. G.G. (03/06/2017) - Judgment vacated and case remanded to the United States Court of Appeals for the 4th Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017. This case had raised the question of whether the federal government can require a federal fund-receiving local school district to allow a transgender teenager to use restrooms corresponding to the teenager's gender identity. [Details: Transgender bathroom case vacated and remanded]
False Claims Act: State Farm Fire & Casualty Co. v. United States ex rel. Rigsby (12/06/2016) - A violation of the FCA's seal requirement does not mandate dismissal of a relator's complaint. [Details: Supreme Court holds: False Claims Act seal violation does not require dismissal]
Preemption: Coventry Health Care of Missouri v. Nevils (04/18/2017) - Missouri law prohibits the subrogation of personal injury claims. The Federal Employees Health Benefits Act authorizes the Office of Personnel Management (OPM) to enter into contracts with private insurance carriers to administer benefit plans, and OPM's contracts require carriers to seek subrogation or reimbursement. These contractual subrogation and reimbursement provisions override state laws barring subrogation and reimbursement.
Indian tribe sovereign immunity: Lewis v. Clarke (04/25/2017 - In a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated.
Employment law decisions: 2015-2016
- Dollar General Corporation v. Mississippi Band of Choctaw Indians - The Court split 4-4, thus affirming the 5th Circuit's judgment that an Indian tribal court has jurisdiction over an intern's claim that the manager of a store on tribal land sexually molested him while he was working there. June 23, 2016.
- Encino Motorcars, LLC v. Navarro - Court gives no deference to Department of Labor's rule regarding exempting “service advisors” at car dealerships from the Fair Labor Standards Act's overtime-pay requirements. June 20, 2016.
- Green v. Brennan - For federal employees, the filing period for a constructive discharge claim begins to run when an employee resigns, not at the time of an employer’s last allegedly discriminatory act giving rise to the resignation. May 23, 2016.
- CRST Van Expedited, Inc. v. EEOC - A favorable ruling "on the merits" is not a necessary predicate to find that a defendant in a Title VII case has prevailed for purposes of being awarded attorney’s fees. The Court gave no opinion on whether a defendant must obtain a preclusive judgment in order to prevail. May 19, 2016. [SCOTUSblog Opinion analysis: Title VII defendants can recover attorney’s fees without prevailing “on the merits”]
- Heffernan v. City of Paterson - The First Amendment bars the government from demoting a public employee based on a supervisor's perception that the employee supports a political candidate. April 26, 2016.
- Friedrichs v. California Teachers Association - The Court split 4-4, thus affirming the 9th Circuit decision which followed Abood v. Detroit Board of Education. Public-sector “agency shop” arrangements do not violate the First Amendment. The 4-4 decision does not set a precedent, so the issue can return to the Court in a later case. March 29, 2016.
- Tyson Foods, Inc. v. Bouaphakeo - A class or collective action can be certified where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample, and the class contains members who were not injured. March 22, 2016.
- Gobeille v. Liberty Mutual Insurance Company - ERISA preempts a Vermont statute that requires health insurers to report payments and other information relating to health care services to a state agency for compilation in an all-inclusive health care database. March 1, 2016.
- Campbell-Ewald Company v. Gomez - An unaccepted Rule 68 offer that would fully satisfy an individual plaintiff's claim does not moot that claim, and also does not moot a class action. January 20, 2016.
- Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan - When an ERISA-plan participant wholly dissipates a third-party settlement on non traceable items, the plan fiduciary may not bring suit to attach the participant's separate assets under ERISA Section 502(a)(3). January 20, 2016.