Despite the federal government’s shutdown, the US Supreme Court has started its new term and there’s a lot to look at from an employment law standpoint. So without further ado, we preview the top cases on the Supreme Court’s schedule with possible HR ramifications.
1. Noel Canning v. NLRB
While the National Labor Relations Board had to send home 1600 employees on furlough amidst the shutdown, the labor board will be front and center at the Supreme Court this term. In early 2014, the justices will hear arguments in Noel Canning v. NLRB, a politically-charged case that could call the validity of hundreds of NLRB decision into question.
The case stems from a lower court’s ruling that President Obama’s three recess appointments to the NLRB in 2012 were illegal because the Senate was not officially in recess when he made the appointments. A ruling that the appointments were unconstitutional could lead to a host of pro-employee decisions being set aside.
2. Schuette v. Coalition to Defend Affirmative Action
The question before the Supreme Court in this affirmative action dispute actually does not directly involve employment law. But it nonetheless makes the list because the use of racial preferences is always a hot-button controversy with potential undercurrents for employers lying not far below the surface.
At issue is a Michigan law banning the use of such preferences in public universities, government contracting and public employment. While the Court is addressing the public education prong of the law, there has been much speculation that the case could be a vehicle to scale back affirmative action generally in the US. Should that prove true, it may have implications for employer diversity initiatives.
3. Sandifer v. US Steel Corp.
The Supreme Court also will hear a Fair Labor Standards Act case that asks whether employers can avoid paying overtime to unionized employees for time spent putting on and taking off certain protective gear.
The case involves steelworkers at the largest integrated steel mill in North America, US Steel’s 4,000-acre Gary Works plant. The process of putting on gear and traveling to the work site at the start of the day, and then returning to the locker room and removing it at the end of the day, sometimes added up to several hours per week. With overtime litigation a big trend in US courts, the case merits watching.
4. Lawson v. FMR
Allegations of employer wrongdoing often stem from an employee blowing the whistle on unethical business practices. But the incentive for employees to come forward is greatly lessened without legal protection from retaliation.
However, a Supreme Court case this term could extend Sarbanes-Oxley (SOX) whistleblower protections to employees of private companies that contract with public companies. Mutual fund companies claim that SOX whistleblower protections apply only to public—not private—companies. So private employers should pay special attention to the outcome at the nation’s highest court.
5. More Still to Come
The Supreme Court still figures to add another 25 cases to its docket over the course of the term, which ends in late June. Here are two more HR-related issues percolating that have a decent chance of getting reviewed before the curtain closes on the term in Washington:
• Must employers cover contraception in their health plans under the Affordable Care Act? US appeals courts have been divided. Should the Supreme Court step in, the attention will be significant.
• Must employers provide special accommodations to pregnant workers? The Supreme Court has requested the government’s views in Young v. United Parcel Service.
Thanks to my XpertHR colleagues Melissa Gonzalez Boyce, Michael Cardman and Marta Moakley, whose reporting also contributed to this piece.