What Justice Scalia's Death Means for Pending Employment Cases

Author: David B. Weisenfeld, XpertHR Legal Editor

February 19, 2016

Justice Antonin Scalia's death last weekend in the midst of the presidential race has put the Supreme Court at the center of a political firestorm. But what will it mean for pending labor and employment cases at the nation's highest court?

It is highly likely that the Supreme Court will finish the remaining four-plus months of its term with only eight members. Senate Majority Leader Mitch McConnell has said he will not schedule confirmation hearings for a new nominee because he believes the vacancy should be filled by the next president.

Public Employee Unions

Just last month, the Supreme Court heard the case of Friedrichs v. California Teachers Association, and a majority of the justices appeared ready to deal a significant blow to the nation's public employee unions. The case involves a group of teachers who claim their free speech rights are being violated when they are compelled to pay dues to the state's teachers' union.

During oral arguments, Justice Scalia was among those expressing skepticism of the union's position. For instance, he asked why the union would not survive without the fees charged to nonmembers. While Supreme Court predictions can at times be a fool's errand, many observers supposed that five of the nine justices would rule against the teacher's union, or at least scale back its ability to collect mandatory dues.

But without Justice Scalia, the Court instead figures to be evenly split. Employment attorney Anthony Oncidi, who heads the labor and employment practice group at Proskauer Rose in Los Angeles, calls Friedrichs "the most monumental decision of the current [Supreme Court] term," and agrees that a 4-4 split is now likely.

Such a result would leave the lower court's ruling that permitted the union to collect these dues intact. The Court also could decide to have the case reargued when it again has a full complement of members, but that too would leave the lower court's ruling intact for at least a year if no replacement is confirmed before the end of President Obama's term.

FLSA Class Actions

The Supreme Court also has not yet decided the Fair Labor Standards Act (FLSA) case of Tyson Foods v. Bouaphakeo, a dispute which could have implications for a host of class action lawsuits affecting employers.

Tyson Foods is challenging a $5.8 million class action judgment involving more than 3,000 workers at the company's pork-processing facility in Iowa. The workers claimed Tyson violated the FLSA by failing to pay them for time spent putting on and taking off protective clothing and equipment.

The Court has scaled back class actions in a series of cases in recent years, all decided by 5-4 votes that included Justice Scalia in the majority. In this case, it appeared the employer might lose as Justice Anthony Kennedy asked a series of questions expressing skepticism of its argument. He also said employees seeking to recover overtime pay under the FLSA may use statistics, which could not be used in other types of class actions, to prove their case.

While it appears Tyson Foods may have lost the case with or without Justice Scalia's vote, his death likely ensures such a result. Even if Justice Kennedy were to side with the employer, that would result in another 4-4 tie that would favor the employees because they had prevailed in the lower courts.

Affordable Care Act Controversy

Another notable employment case on the Supreme Court's schedule is the latest Affordable Care Act controversy, Zubik v. Burwell. At issue is whether religiously affiliated employers can be relieved from playing any role in providing contraceptive coverage for their employees.

Oral argument in the case is set for March 23. A 4-4 split would let stand the 3rd Circuit Court of Appeals ruling that the ACA places no substantial burden on religiously affiliated organizations.

In 2014, the Supreme Court had sided with owners of closely held for-profit corporations with religious objections to birth control over the ACA's contraceptive coverage mandate in a 5-4 decision. Justice Scalia represented one of the five votes in favor of the religious objectors.