What Justice Scalia’s Death Means for Employers

You likely have seen or read numerous stories and reports about the death of United States Supreme Court Justice Antonin Scalia and what it means for U.S. politics and the upcoming presidential election.  We will leave that discussion to the experts.  If a replacement is not appointed and approved, though, the Supreme Court will be left with only 8 members that are ideologically split on 4-4 lines.  While there is no guarantee that this will be a problem, there is potential that some cases could be decided on a 4-4 basis.  If that happens, the lower court decision stands but no national precedent is set and the issue remains somewhat unsettled.  This applies to cases that previously were heard but for which no decision has been issued and to cases which will be heard before a replacement is in place.

Our focus here is on the cases that fall within this group and that affect employers.  Again, while there is no guarantee that these cases will be decided 4-4, there is a possibility of such an outcome.  In that case, employers will face continued uncertainty in these areas.  While these cases are not necessarily the most groundbreaking or pressing issues facing employers, they do affect the workplace and we, therefore, are monitoring them.

The first case is Tyson Foods, Inc. v. Bouaphakeo.  Oral arguments in this case occurred in November 2015 but no decision has been issued yet.  In this case, a group of employees in a meat processing plant in Iowa sued their employer (Tyson) under the FLSA alleging that they were not appropriately paid for time spent putting on and taking off protective clothing at the beginning and end of the workday and the beginning and end of their lunch breaks.  The district court certified the case as a class action and a jury awarded them several million dollars.  The employer appealed and argued that the class should not have been certified because some members of the class were not injured and, thus, had no right to damages.  The appeals court upheld the verdict in favor of class certification and the employees.  At issue before the Supreme Court is whether or not a class can be certified and maintained when some class members suffered no injury and whether differences among class members may be ignored for class certification when damages will be based on statistical techniques.

The second case is Friedrichs v. California Teachers Association.  Oral argument in this case occurred in January 2016 but no decision has been issued.  This case is a union case and the issue before the Court is whether public sector employees may be compelled to contribute dues to a union.  Supreme Court watchers anticipated that the five conservative Justices would overturn the lower court ruling that allowed the law permitting compelled union dues to stand.  If a 4-4 decision is reached in this case, the law will stand.

The last case we will highlight is CRST Van Expedited, Inc. v. EEOC.  Oral argument in this case currently is scheduled for March 2016.  While the case is more of a procedural and legal issue, the ultimate outcome could affect how the EEOC handles future lawsuits against employers because the Supreme Court is expected to provide clarity regarding the EEOC’s obligations when the EEOC prosecutes systemic discrimination/harassment lawsuits.  In this case, the EEOC filed a sexual harassment lawsuit on behalf of 270 female employees against the employer.  Two years after filing, the EEOC still had not identified the 270 women and the district court ordered the EEOC to (1) amend the list of women to only include those who wished to continue with the lawsuit and (2) ensure that all the women were available to be deposed.  The EEOC did not comply with the second part of the order.  The employer filed seven motions to dismiss, six of which were granted.  The employer subsequently sought costs and fees against the EEOC totaling approximately $4.5 million.  The district court granted the fees award but the appeals court reversed on the grounds that the EEOC’s failure to meet pre-suit obligations was not an element of the underlying claim and, thus, did not constitute a ruling on the merits that supported an award of fees.

We will keep a close eye on these cases and report back but this is just another example of how politics affects the workplace and employers everywhere.

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