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The Supreme Court's Upcoming Term

September 30, 2013

The first Monday in October, when the U.S. Supreme Court begins its next term, is fast approaching.  Labor and employment cases are on the docket, and the Court will address issues that include the validity of National Labor Relations Board rulings, compensable time under the Fair Labor Standards Act, whistleblowing, and affirmative action, among other things. 

In a critically important labor relations case, National Labor Relations Board v. Noel Canning, the Court will consider whether the President’s appointments of members to the National Labor Relations Board during the Congressional recess were valid. If not, the decisions issued by the Board during the period in which those Board members served could be invalidated.

In Sandifer v. U.S. Steel Corporation, the issue of what constitutes “clothes changing” within the meaning of the Fair Labor Standards Act (FLSA) will be addressed by the Court.  Under the FLSA, time spent changing clothes is not compensable; however, the courts have disagreed on whether personal protective equipment, like earplugs, glasses, and safety glasses are “clothes.”

In Unite Here Local 355 v. Mulhall, the Court will address whether an employer and union violate Section 302 of the Labor-Management Relations Act, which prohibits a company from giving the union a “thing of value,” by entering into a neutrality agreement, in which the company agrees to remain neutral during a union organizing drive.

In Madigan v. Levin, the Court will decide whether state and local government employees can avoid the comprehensive remedial structure of the Age Discrimination in Employment Act by bringing age discrimination claims directly under the Equal Protection Clause, which provides that no state shall deprive a person of the equal protection of its laws, and Section 1983, which protects the constitutional rights of citizens from state action.

Although not an employment case, the Court will tackle the issue of affirmative action in Schuette v. Coalition to Defend Affirmative Action, in which it will decide whether a state violates the Equal Protection Clause in amending its constitution to prohibit race- and sex-based discrimination or preferential treatment for purposes of public university admissions.

In Lawson v. FMR LLC, the Court will consider whether an employee of a privately held contractor or subcontractor of a public company is protected from retaliation for whistleblowing under the Sarbanes-Oxley Act.

We will keep you posted on these, as well as other cases that may be taken up by the Supreme Court during this next term.