Oct 11, 2010

Lots of Employment Cases at the Supreme Court: Half a Dozen to Watch

court_front_med.jpgThe U.S. Supreme Court opened its latest session last week with a number of employment law cases on the docket. Plenty of interesting issues to keep an eye on for this term, including:

  • Oral complaints of violations of the Fair Labor Standards Act (Kasten v. Saint-Gobain Performance Plastics Corp.). An employee is fired for repeatedly failing to punch in and out on the time clock. The employee claims that he made numerous oral complaints that the location of the time clock required employees to clock in only after donning their safety gear for work, and to clock out before taking that gear off, which resulted in unpaid overtime. The employee filed -- and won -- a class action lawsuit on the overtime question; now, the Supreme Court will decide whether he has a retaliation claim. At issue is whether an oral complaint is protected by the FLSA's provision prohibiting retaliation, or whether a complaint must be in writing to be protected. (The excellent SCOTUSBLOG has links to key documents in the case here.)
  • Evidence of bias in someone who influenced the decision maker (Staub v. Proctor Hospital). This is the cat's paw case, so-called because of a French fable (which also involves, according to the Court of Appeals decision in the case, some chestnuts and "a clever-- and rather unscrupulous--monkey"; but we digress). In this case, the employee was fired and claimed it was because of his military service, in violation of USERRA. There was plenty of evidence of bias against him on this basis, but by someone other than the person who decided to fire him. The Supreme Court agreed to decide whether an employer can be held liable for the discriminatory bias of someone who caused or influenced but did not ultimately make the employment decision at issue. 
  • Retaliation against someone associated with the complaining employee (Thompson v. North American Stainless). An employee filed an EEOC charge, alleging that her employer discriminated against her based on gender. Three weeks after the EEOC notified her employer of the charge, the employer fired her fiance, also an employee; the two met at work and their relationship was known in the workplace. Can the fiance file a retaliation case, even though he never engaged in any protected activity (complained of discrimination or harassment) himself? The federal Court of Appeals for the Sixth Circuit said no; the Supreme Court will decide.
  • Background checks for federal contractors (NASA v. Nelson). This case, brought by employees of CalTech who worked in a research lab jointly run with NASA, challenges the federal government's background check requirements as a violation of the right to informational privacy. You can read my previous post summarizing the facts of the case here. For a summary of the oral argument (held last week), check out this recap on SCOTUSBLOG.
  • Arbitration agreements that don't allow class-wide arbitration (AT&T v. Concepcion). This is a consumer case rather than an employment case, but it could have far-reaching effects in the employment field. Several people sought redress from AT&T, which advertised that subscribers got a free phone, but in fact charged sales tax on the value of the phones. The subscriber agreement with AT&T required customers to arbitrate their claims, and prohibited them from bringing a class action-style arbitration on behalf of all subscribers who got hit with the tax. The federal Court of Appeals for the Ninth Circuit found that the arbitration agreement was unconscionable -- and therefore unenforceable -- because it prohibited class-wide claims. The Supreme Court agreed to hear the case.  
  • The requirements Arizona's immigration law imposes on employers (Chamber of Commerce v. Whiting). In a rare case in which the Chamber of Commerce and the SEIU are on the same side, this lawsuit alleges that Arizona's controversial immigration law -- and specifically, its sanctions (including revocation of business licenses) against employers who hire unauthorized workers is preempted by federal law -- is preempted by federal immigration law. The case also challenges Arizona's requirement that all employers use the federal eVerify system.