July 23, 2019

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Scalia-less Supreme Court Term Ends With Small Victories For Employers, But Also Great Uncertainty

As the recent Supreme Court term winds to an end, the Court finds itself in a state of flux. The sudden death of longtime justice Antonin Scalia, in February, and political gridlock in confirming Judge Merrick Garland, has led to uncertainty as to the future of the Court. In the midst of these changing tides, the Court issued several decisions this term that may impact employers.

DirectTV, Inc. v. Imburgia, 577 U.S. ___, 136 S. Ct. 463 (2015)

Supreme Court, ScaliaDirectTV, Inc. v. Imburgia is a positive decision for employers as it continued the Court’s trend in upholding class action waivers included in binding arbitration agreements; see here. Specifically, the Court held the Federal Arbitration Act (“FAA”) pre-empts state bans on class action waivers contained in arbitration agreements. Although Imburgia is a consumer class action, for employers it supports the argument that state law does not trump the enforceability of binding arbitration clauses contained in collective bargaining agreements or employment contracts.

The federal circuit courts remain split over whether class action waivers in collective bargaining agreements are allowable under the NLRA, with the Second, Fifth and Eighth Circuits holding that they are enforceable and the Seventh Circuit backing the NRLB’s position that they are not. The Supreme Court likely will be called upon to resolve this split.

Green v. Brennan, 578 U.S. ___ (2016)

Green v. Brennan is an important case for employers facing constructive discharge claims, as it clarifies the filing period in which an employee must bring such a claim. Specifically, the Court found that a constructive discharge claim accrues on the date of the employee’s resignation, and not on the date of the alleged discrimination that resulted in the employee’s later resignation. The Court further clarified that the date of resignation is not the last date an employee actually worked, but rather the date an employee notified their employer that they were resigning, such as when giving two weeks’ notice.

CRST Van Expedited, Inc. v. EEOC, 578 U.S. ___ (2016)

CRST Van Expedited, Inc. v. EEOC is a useful case for employers facing EEOC litigation as it emphasizes the pre-suit investigatory obligation of the EEOC. Specifically, the Court gave teeth to the EEOC’s existing obligation to conduct a reasonable pre-suit investigation to avoid “frivolous, unreasonable or groundless” claims, which the Commission failed to do, by making it easier for employers to recover attorney fees when that obligation is not met. The Court unanimously held that a defendant-employer in a Title VII claim need not obtain a favorable post-hearing judgment to be considered a “prevailing party” in order to obtain attorney’s fees under the Act.

Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ___ (2016)

Tyson Foods, Inc. v. Bouaphakeo may be of interest to employers facing class action litigation.  Tyson Foods allows for class certification on the basis of statistical analyses that presume all class members are identical to an average, despite significant real world differences between the members. As such, the case appears to signal the Court’s loosening of class certification requirements.

Heffernan v. City of Paterson, 578 U.S. ___ (2016)

Heffernan v. City of Paterson provides an arrow in the quiver of employees combating speech restrictions imposed by their employers. A 6-2 majority of the Court decided that a former New Jersey police officer could bring a claim under 42 U.S.C. § 1983 for violation of his rights of freedom of speech and expression under the First Amendment. Heffernan claimed he was demoted for supporting a political adversary of the mayor, based on his employer’s mistaken belief that he was holding a campaign sign in support of the mayor’s challenger. The lower courts found Heffernan had not engaged in protected speech by merely holding the campaign sign. The Supreme Court reversed, indicating “[t]he constitutional harm – discouraging employees from engaging in protected speech or association – is the same whether or not the employer’s action rests upon a factual mistake.” While Heffernan dealt with a claim by a public-sector employee, it could be cited by private-sector employees challenging employer policies and practices involving regulation of employee political speech outside of the workplace, including on social media.

Friedrichs v. California Teachers Association, 578 U.S. ___, 136 S. Ct. 1083 (2016)

The mid-term passing of Justice Scalia led the Court to fail to reach consensus in Friedrichs v. California Teachers Association.  Justice Scalia’s empty seat led to a 4-4 tie and a one-line decision affirming the Ninth Circuit’s position that mandatory union dues for non-member public-sector employees were constitutionally permissible. While the case involved public-sector employees, the 4-4 split demonstrates the Court’s divided position. Should a private-sector cause of action over mandatory union dues make its way to the Court, the seating of a ninth justice could tip the scales either way.

Fisher v. University of Texas, 579 U.S. ___ (2016)

One of the more publicly anticipated decisions of the term that carried potential employment ramifications was Fisher v. University of Texas. Fisher is the latest in a line of cases involving affirmative action policies at public universities. In a 4-3 decision, the Court ultimately affirmed the holding of the Fifth Circuit that the race-conscious admissions policy used by the University of Texas at Austin were lawful. While Fisher did not deal with employer policies, its central holding reaffirms prior precedent that narrowly tailored race-conscious preferences may continue. This includes programs such as voluntary initiatives by employers to diversify their workforce.

While the October 2015 term failed to deliver any employment blockbusters, the aforementioned decisions will nonetheless impact the practice area. Still, it seems the most impactful event of this term for employers may have been the passing of Justice Scalia, the uncertainty about who will fill the empty seat on the bench, and how that will impact employment law and all other practice areas moving forward.

Kyle Jacob is the author of this article. 

© 2019 Schiff Hardin LLP


About this Author

Schiff Hardin represents management in labor matters and employment-related litigation, and provides counsel to employers with respect to all legal aspects of employer-employee relations. Our firm's labor law practice encompasses both the private sector and the public sector for large and small employers in a broad range of markets and industries. Our Labor and Employment Group works cooperatively with attorneys in our Employee Benefits and Executive Compensation Group to provide our clients with comprehensive assistance in every aspect of the employer-employee relationship.