As early as November 30, 2018, the U.S. Supreme Court will decide whether to hear three high profile employment cases that question whether Title VII’s ban on sex discrimination protects gay and transgender employees. These cases have significant implications on the proper scope of Title VII and the rights of the LGBT community in the workplace.
Under Title VII, an employer has engaged in “‘impermissible consideration of … sex … in employment practices’ when ‘sex … was a motivating factor for any employment practice,’ irrespective of whether the employer was also motivated by ‘other factors’.”
Just over two years ago, after the passing of Justice Antonin Scalia but before the confirmation of Justice Neil Gorsuch, the U.S. Supreme Court deadlocked in a 4-4 tie over whether unions could require non-members to pay “fair share fees.” The case challenged the Supreme Court’s 1977 Abood v. Detroit Board of Education precedent that allowed public sector unions to force non-union members to pay fees covering the cost of collective bargaining so long as the workers were not made to pay for a union’s political or ideological activities.
Recently, in Janus v. AFSCME, the Supreme Court returned to the issue. Ultimately, the Court held that allowing public sector unions to require non-union workers to pay fair share fees violates workers’ First Amendment rights, thereby overturning the Abood precedent.
In a highly anticipated ruling, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, U.S. Supreme Court ruled 7-2 in favor of a cake shop owner who refused to make a wedding cake for a same-sex couple because of his religious beliefs. The case highlights the potentially conflicting intersection of religious freedoms and anti-discrimination laws; i.e. the right to hold sincere religious beliefs and the right to be treated equally and without discrimination based on one’s sexual orientation. READ MORE
Employers across the country started the work week with some positive and long-awaited news. On Monday, May 21, 2018, the U.S. Supreme Court ruled in a landmark case that employment arbitration agreements with class action waivers do not violate federal labor law. The Court’s 5-4 decision in Epic Systems Corp. v. Lewis, No. 160285 (U.S. May 21, 2018), consolidated with Ernst & Young LLP et al v. Morris et al., No. 16-300, and National Labor Relations Board v. Murphy Oil USA, Inc., et al. , No. 16-307, was authored by Justice Gorsuch, and settles the longstanding dispute over whether arbitration agreements containing class waivers are enforceable under the Federal Arbitration Act (FAA) despite the provisions of Section 7 of the National Labor Relations Act (NLRA). READ MORE
In the Supreme Court’s first decision interpreting Dodd-Frank’s whistleblower retaliation provisions, the Court unanimously held that internal whistleblowing is not protected under Dodd-Frank. The highly anticipated ruling resolves a circuit split between the Second and Ninth Circuits, which held that such reporting was protected, and the Fifth Circuit, which held that it was not. The Court sided with the Fifth Circuit’s textual reading and held that no Chevron deference to the SEC’s interpretation of the statute was warranted because the statutory definition of “whistleblower” was clear. READ MORE
In July, we reported that the Supreme Court scheduled oral arguments to settle the circuit split of whether mandatory class action waivers violate section 7 of the National Labor Relations Act (“NLRA”).
Last month, both sides argued before the Court: the pro-employer representatives argued that arbitration agreements containing class waivers must be enforced under the FAA (representing the Second, Fifth and Eighth Circuits) while the pro-employee representatives argued that class waiver provisions contained in arbitration agreements are illegal under the NLRA and thus, not subject to the FAA (representing the Sixth, Seventh and Ninth Circuits). READ MORE
As Congress considers a bill to change the definition of joint employment under two federal statutes, the Supreme Court is poised to decide whether to take up the issue under the Fair Labor Standards Act, the U.S. Department of Labor has withdrawn administrative guidance issued by the prior administration, and several states have enacted or considered joint employment legislation. In this rapidly evolving legal landscape, companies may want to keep a close eye on a doctrine that can lead to unexpected legal exposure. READ MORE
In January, we reported that the Supreme Court granted review of three conflicting Court of Appeal decisions to settle the question of whether an agreement requiring that employees resolve employment-related disputes through individual arbitration violates the National Labor Relations Act (“NLRA”).
Last week, the Supreme Court set oral argument for October 2, 2017 to resolve the circuit split on whether mandatory class action waivers violate the NLRA. The Fifth, Second and Eight Circuits rejected the National Labor Relations Board’s (“NLRB”) position that class action waivers unlawfully interfere with employees’ NLRA rights to engage in concerted activity. See Murphy Oil USA, Inc. v. NLRB, 808 F.3d. 1013 (5th Cir. 2015); Cellular Sales of Missouri, LLC v. NLRB, 824 F.3d 772 (8th Cir. 2016); Patterson v. Raymours Furniture Co., Inc., 2016 WL 4598542 (2d Cir. Sept. 2, 2016). The Ninth and Seventh Circuits however, held that an arbitration agreement precluding class actions violates the NLRA and is not preempted by the Federal Arbitration Act (“FAA”). See Morris v. Ernst & Young, 834 F. 3d 975 (9th Cit. 2016) Epic Systems Corp. v. Lewis, 823 F.3d 1147 (7th Cir. 2016). The Ninth Circuit’s opinion distinguishes mandatory class action waivers from those agreements that permit employees to opt-out. READ MORE
In a recent oral argument before the U.S. Supreme Court, the justices considered a narrow procedural issue that could have broader implications for the subpoena power of the U.S. Equal Employment Opportunity Commission (“EEOC”).
At issue in McLane Company, Inc. v. EEOC is the standard of review applicable to district court decisions in proceedings brought to compel compliance with EEOC subpoenas issued in administrative investigations. While all the other circuits to have considered the issue have applied an abuse-of-discretion standard, the Ninth Circuit held that such decisions are subject to de novo review. READ MORE
In August of 2016, we reported that the Ninth Circuit created a deeper circuit-split on whether class action waivers in arbitration agreements violate the National Labor Relations Act (“NLRA”) with its decision in Morris v. Ernst & Young LLP.
As expected, the Supreme Court granted review today of three of the conflicting Court of Appeals decisions. It granted review of the Fifth Circuit’s decision in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015). The Fifth Circuit rejected the National Labor Relations Board’s (“NLRB”) position that class action waivers unlawfully interfere with employees’ NLRA rights to engage in concerted activity, agreeing with the Second and Eighth Circuits. The Ninth and Seventh Circuits, on the other hand, adopted the NLRB’s position that class action waivers violate the NLRA.
The Supreme Court also granted review in Morris v. Ernst & Young, 834 F.3d 975 (9th Cir. 2016) and Epic Systems Corp. v. Lewis, 823 F.3d 1147 (7th Cir. 2016). The Seventh Circuit held that an arbitration agreement precluding collective arbitration or collective action violates section 7 of the NLRA and is unenforceable under the FAA. The Ninth Circuit agreed and concluded that compulsory class action waivers violate sections 7 and 8 of the NLRA by limiting workers’ rights to act collectively, noting in footnote 4 that agreements containing an “opt-out” clause for pursuing class claims do not violate the NLRA.
All three cases have been consolidated and will be argued together.