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October
19, 2011
This
Year's Supreme Court Labor and Employment Cases<=
/span>
By L. Steven Platt
The first week in October signals the beginning of t=
he
new Supreme Court Term. The Court has accepted several significan=
t cases
which employers should watch carefully. These cases address relig=
ious
discrimination, health care, the FMLA=
and
union dues. The Court refused to review cases involving service
member discrimination and overtime claims. The Court will soon be
deciding whether to hear an affirmative action case brought again=
st
the University of Texas which was dismissed by the Fifth Circuit
Court of Appeals.
Cases Taken:
Religious Freedom and Church vs.
State. Hosanna-Tabor
Evangelical Lutheran Church and School v. EE=
OC
and Cheryl Perich, Case N=
o.
10-553. The Court heard oral argument on October 5, 2011, to deci=
de
whether the "ministerial exception," which prohibits mo=
st
employment-related lawsuits against religious organizations by
employees performing religious functions, applies to a teacher at=
a
religious elementary school who teaches a full secular curriculum=
in
addition to daily religion classes. The Justices focused on the
question of what constitutes a "minister" with Justices
Ginsberg and Sotomayor suggesting that the definition be narrowly
construed and Chief Justice Roberts advocating that the exception
apply broadly. The lower court dismissed the teacher's claim base=
d on
the ministerial exception.
FMLA<=
/u>.
Coleman/Dani=
el v.
Maryland Court of Appeals, Case =
No.10-1016.
The Court will decide whether state employees are eligible for FMLA leave where the state did not waive its
Eleventh Amendment Immunity from coverage by that federal statute=
. In
Seminole Tri=
be of
Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114; 134=
L.
Ed. 2d 252 (1996), and cases that fol=
lowed
it, the Supreme Court ruled that a variety of federal employment =
law
statutes enacted under the commerce clause do not apply to state
employers and universities unless the states explicitly waive the=
ir Eleventh
Amendment Immunity. Following those decisions, 36 states passed
Eleventh Amendment waivers, but Maryland and many of the southern
states did not.
In Coleman/Daniels,
a state employee took a leave to care for a sick relative and was
fired. The state argued that the employee's leave was not protect=
ed
under FMLA. The lower court ruled that
recent amendments to the FMLA did not=
apply
to Maryland state employees because Maryland has not waived its
Eleventh Amendment immunity. The Court has taken the case up to
decide whether recent amendments to the FMLA=
still require an Eleventh Amendment waiver.
Public Labor Law.
Knox v. SEIU, Case No. 10-1121. The Cou=
rt
will decide whether states may, consistent with the First and
Fourteenth Amendments, condition employment on union dues deducti=
ons
for political education and action fund contributions without fir=
st
providing employees a notice that includes information about that
assessment and an opportunity to object to the deduction from the=
ir
paycheck. The Court will also review whether a state, consistent =
with
the First and Fourteenth Amendments, may condition continued publ=
ic
employment on the payment of such union dues.
Cases Declined:=
The Court rejected claims in three employment cases =
of
note.
USERRA:
Carder v.
Continental Airlines, Case No. 10-1546. The Court
declined to review a case where the issue was whether the Uniform=
ed
Services Employment and Reemployment Rights Act ("USERRA") protects service members from
harassment in the workplace based upon military status. While this
may seem to be a clear cut matter, the Fifth Circuit held there w=
as
no such right of action for "military harassment." The
Supreme Court allowed this decision to stand. <=
/p>
ADEA<=
/u>:
Opp v. Office of the Stat=
e's
Attorney of Cooke County, Case No. 10-1163. The Court
declined the opportunity to determine who is a worker "at the
policy making level" under the ADEA.
The Supreme Court chose not to disturb a federal appeals court's
holding that the ADEA does not cover =
three
laid-off Illinois assistant state's attorneys because they were
"policymaking" officials.
FLSA<=
/u>:
Christopher =
v.
SmithKline Beacham Corp.,=
Case
No. 11-204. The Court declined to decide (1) whether deference is
owed to the Secretary of Labor's interpretation of the FLSA's outside sales exemption and related
regulations; and (2) whether the FLSA's
outside sales exemption applies to pharmaceutical sales
representatives.
Case Pending Review: Affirmative
Action.
One other civil rights case of note is working its w=
ay through
the system. The plaintiff in Fisher
vs. University of Texas - is appealing her denia=
l of
admission to the University of Texas in favor of some minorities =
at
the expense of what she believes were white and Asian American
applicants. This kind of practice of favoring one group of minori=
ties
over another group is being labeled by proponents as "positi=
ve
discrimination."
The Supreme Court has already ruled in Grutter v. Bollinger,
539 U.S. 306 123 S.Ct. 2325, 156 L.Ed.2d 304, (2003), that the University of
Michigan could not use a quota systems to increase the number of
minority applicants. But the 5-4 decision in Grutter
did not prohibit all forms of affirmative action. It also did not
prohibit programs designed to increase certain types of minority =
enrollment
so long as the affirmative action plan does not have any preset, =
or
predetermined goals or quotas that are strictly adhered to. If th=
is
case is accepted on appeal it will be the Court's first chance to
interpret the outward parameters of the =
Grutter opinion.<=
o:p>
If
you have any questions, please contact Steve Platt at (312) 985-5=
943
or splatt@clarkhill.com; o=
r your
Clark Hill labor and employment attorney.
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