The Supreme Court’s 2013-14 Labor & Employment Docket

Darrell VanDeusen
Darrell VanDeusen
10/16/2013

The Supreme Court began its term last week with eight labor and employment cases on tap. Let’s take a look: 

NLRB v. Noel Canning.  This is the case of the term. The Court will review the D.C. Circuit’s decision that President Obama’s January 2012 recess appointments of three National Labor Relations Board (NLRB) members were invalid because they did not occur between Senate sessions and did not fill vacancies that arose during such an inter-session period. Since Noel Canning was decided, two other federal appellate courts also struck down NLRB rulings for lack of a NLRB quorum.  NLRB v. New Vista Nursing & Rehabilitation, 719 F.3d 203 (3d Cir. 2013) and NLRB v. Enterprise Leasing Co., 196 LRRM 2269 (4th Cir. 2013).

Lawson v. FMR. The Court will consider whether the Sarbanes-Oxley (SOX) Act’s whistle-blower provision applies to employees of a publicly traded company’s private contractors or subcontractors, or only to the public company’s employees.   The First Circuit decided 2-1 that while SOX applied to publicly owned Fidelity mutual funds, the Act did not protect employees of separate investment advisory firms that manage the funds.  670 F.3d 61 (1st Cir. 2012). Argument is set for November 12.

Madigan v. Levin. The Court heard argument on October 7 on the extent to which Section 1983 claims may be brought to challenge alleged age discrimination. Until last year, all Federal appellate courts had held that a Section 1983 claim is not available, because it would permit an individual to bypass the well-established administrative protocols of going to the EEOC before going to court. In Levin v. Madigan, 692 F.3d 607 (7th Cir. 2012), the Seventh Circuit disagreed, creating a Circuit split on the issue.   At oral argument, however, much time was spent on procedural issues, suggesting that the Court may not reach the merits of the case.

Sandifer v. U.S. Steel Corp. This case involves FLSA donning and doffing requirements and the extent to which the need to change in to personal protective equipment qualifies as “changing clothes” under Section 203(o) of the Fair Labor Standards Act and therefore cannot count toward employees’ working time. The Seventh Circuit dismissed the case here, holding that some personal protection gear was “clothing” and that the donning and doffing of non-clothes items like safety glasses, ear plugs and hard hats was “de minimis” and therefore non-compensable. The court also held that employee time spent traveling between the locker rooms and workstations need not be compensated. Sandifer v. U.S. Steel Corp., 678 F.3d 590 (7th Cir. 2012). Argument is scheduled for November 4. The U.S. Solicitor General file an amicus brief that supports U.S. Steel’s reading of Section 203(o), saying the term “clothes” covers the flame-retardant items donned by plant employees.

UNITE HERE Local 355 v. Mulhall. The Court will hear argument on November 13 on whether a “neutrality” agreement between a union local and a Florida greyhound track and casino violated Section 302 of the Labor-Management Relations Act. The Eleventh Circuit said that it might have, and created a Circuit split on the issue. UNITE HERE Local 355 v. Mulhall, 667 F.3d 1211 (11th Cir. 2012). The union’s brief argues that other federal courts that have considered the issue have rejected the notion that such activities might violate Section 302. See Adcock v. Freightliner, LLC, 550 F.3d 369 (4th Cir. 2008); Hotel Employees & Restaurant Employees Local 57 v. Sage Hospitality Resources, LLC, 390 F.3d 206 (3d Cir. 2004).

Heimeshoff v. Hartford Life & Accident Insurance Co. In a sleeper of a case, the Court will consider the issue of when the statute of limitations begins to run for judicial review of an adverse disability benefits determination under ERISA. This comes from an unpublished decision from the Second Circuit, which affirmed a district court dismissal of a claim against an insurance company that denied the plaintiff long-term disability benefits as untimely filed.

DaimlerChrysler AG v. Bauman. On October 15 the Court will consider whether a federal court in California has personal jurisdiction over Daimler Chrysler. This is based on a case brought by Argentinian plaintiffs who claim that Chrysler collaborated with Argentine officials in the kidnapping, torture and murder of union supporters at a Mercedes Benz plant in the 1970s. The Ninth Circuit ruled in 2009 that a district court lacked jurisdiction over Chrysler. 

Harris v. Quinn. The Court just accepted this case, which will consider whether home health care aides in Illinois who serve Medicaid recipients can be forced to accept a union as their exclusive bargaining representative with the state and be required to pay a “fair share” fee for the costs of such representation. The Seventh Circuit upheld an Illinois Executive Order and a collective bargaining agreement between the state and the SEIU, requiring this “compulsory unionism.”  Harris v. Quinn, 656 F.3d 692 (7th Cir. 2011).

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