Employment Cases on the Supreme Court’s 2014-15 Docket

Darrell VanDeusen
Darrell VanDeusen
10/06/2014

It’s the first Monday in October and, apart from the most important thing happening this week – the Baltimore Orioles are going to the ALCS – the Supreme Court starts its 2014-15 term. There are, for now, eight labor and employment law cases on the docket.

Integrity Staffing Solutions, Inc. v. Busk (No. 13-433): In the first case of the term to be argued, the Court will decide whether the Fair Labor Standards Act (FLSA) may require employers to pay warehouse employees for time spent going through an anti-theft security screen after their shifts. This case is yet another test of the FLSA’s standard for when “activities which are preliminary to or postliminary” to an employee’s “principal” activities are or are not compensable. Prior Court decisions hold that some pre-shift and post-shift activities must be paid if they are “integral and indispensable” to an employee’s primary job duties. In this case, the Ninth Circuit held that, because the security screen was required of all warehouse employees and conducted solely for the employer’s benefit, it could be found to be “integral and indispensable” to the primary job activities of picking and shipping merchandise to customers.

The Court hears the case on October 8.

Mach Mining LLC v. EEOC (No. 13-1019): The Court will decide whether the EEOC’s pre-suit efforts to conciliate or settle discrimination charges under Title VII of the 1964 Civil Rights Act are subject to judicial review. The Seventh Circuit said they are not. Every other circuit to consider the issue has said the EEOC’s actions are reviewable, and most courts require that the EEOC meet a “good faith” effort standard. In the scheme of things, for those of us who practice in this area, the decision in this case will be the one with the most far-reaching impact of any of the Court’s rulings this term.

No date has been set for oral argument.

Young v. United Parcel Serv., Inc. (No. 12-1226): The Court will decide whether and to what extent the Pregnancy Discrimination Act (PDA) requires employers to accommodate pregnant employees with work restrictions if they accommodate non-pregnant employees with the same restrictions. The Fourth Circuit held that UPS’s “pregnancy blind” policy – it made light duty work available only to those employees injured at work, those employees with impairments covered by the Americans with Disabilities Act, and those employees who temporarily lost DOT certification – didn’t violate the PDA when it failed to offer light duty to a pregnant driver.

The Court hears the case on December 3.

EEOC v. Abercrombie & Fitch Stores, Inc. (No. 14-86): Last week the Court granted cert. in a religious discrimination case. The question presented is whether Abercrombie & Fitch violated Title VII by allegedly refusing to hire a Muslim job applicant in Oklahoma because she planned to wear a hijab – religious head scarf – while working, even though that issue did not come up during her interview and she did not ask for any accommodation. The EEOC asked the Court to decide whether an employer needs to receive direct, explicit notice from an applicant or employee regarding her religious practices or beliefs to trigger Title VII’s duty to accommodate. The flip side, as explained by Abercrombie, is whether an applicant or an employee adequately tells an employer of a need for religious accommodation simply by wearing clothing that can be, but might not be, associated with a particular religion. The Tenth Circuit rejected the EEOC’s view.

No date for oral argument has been set.

Perez v. Mortg. Bankers Ass’n (No. 13-1041) and Nickols v. Mortg. Bankers Ass’n (No. 13-1052): The Court will decide whether the Department of Labor (DOL) violated the Administrative Procedure Act (APA) by changing its interpretation of a FLSA regulation without providing a notice and comment period. In this case, it was the DOL’s decision regarding the exempt status of mortgage loan officers. In a 2006 opinion letter, the DOL said that loan officers were exempt administrative employees. Under the Obama administration’s DOL did an about face and issued a determination in 2010 saying loan officers are not exempt. The D.C. Circuit held that the DOL needed to offer a notice and comment period before doing so.

The Court hears the case on December 1.

M&G Polymers USA, LLC v. Tackett (No. 13-1010): The Court will decide whether silence about the duration of retiree health insurance benefits in a collective bargaining agreement (CBA) means the those retirees are to receive lifetime coverage. The issue is called the “Yard-Man presumption,” named for a 1983 Sixth Circuit case, and refers to a judicial inference that union retiree benefits are intended to be vested absent specific plan or bargaining agreement language to the contrary. Hence, under such an interpretation unless specifically limited, retiree health benefits in a CBA would continue for the life of the retiree. Applying Yard-Man, the Sixth Circuit here upheld a permanent injunction ordering the retirees reinstated to a company’s health plan and barring the company from requiring retiree contributions.

The Court hears the case on November 10.

Department of Homeland Sec. v. MacLean (No. 13-894): The Court will decide whether the Whistleblower Protection Act protects an air marshal who was fired for disclosing “sensitive security information” to the media. Here, the employee admitted that he leaked to MSNBC an internal text message in which DHS said it was temporarily canceling air marshal assignments on overnight stay flights. At issue is the interpretation of Section 114(r)(1) of the Homeland Security Act of 2002, which provides that DHS can “prescribe regulations prohibiting the disclosure of information” and to prevent occurrences it deems “detrimental to the secretary of transportation.” The Federal Circuit held that the employee stated a claim, holding that DHS could not retaliate against an employee for disclosing information embarrassing to the agency, so long as he held a reasonable belief that he was disclosing a “specific danger to public health and safety,” and neither statute nor executive order prohibited disclosure.

The Court hears the case on November 4.

Tibble v. Edison Int’l (No. 13-550): The Court also granted cert. in a case that asks whether a retirement plan fiduciary breaches her duties under ERISA when she offers higher-cost, retail-class mutual funds where identical lower-cost institutional-class funds are available. This is really a statute of limitations case. Three Circuits, including the Ninth Circuit here, have refused to hold plan fiduciaries liable on these types of claims, finding them barred by ERISA’s six year limitations period. The limitations period has presented real problems in these cases, because many funds remain in retirement plans for years after their initial selection.

No date has been set for oral argument.

 

 

 

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