2017 Labor & Employment Cases - U.S. Supreme Court Edition

It's early January -- happy new year! -- and an appropriate time to take a look at several of the labor and employment cases now pending in the Supreme Court.

First, there's McLane Co. Inc. v. EEOC, No. 15-1248. The issue: whether a district court's decision to quash or enforce an EEOC subpoena should be reviewed de novo (as the Ninth Circuit does) or deferentially (as eight other federal circuit courts of appeals do).

McLane is a national distribution company; one of its employees, Damiana Ochoa, filed a gender discrimination charge with the EEOC after she was unable to meet the physical standards McLane imposed after she returned from maternity leave. While investigating the charge, the EEOC issued subpoenas to McLane and subsequently sued McLane to enforce the subpoenas. The federal district court denied part of one of the subpoenas, and the EEOC appealed to the Ninth Circuit, which instead of deferring to the district court and determining whether its decision was an abuse of discretion or clearly erroneous, ruled in favor of the EEOC.

The Supreme Court has set oral argument for February 21, 2017. Here's a link to the Court's docket and the parties' briefs.

While not the flashiest issue to be decided by the Supreme Court this term, the result will have a tangible impact on employees and employers. If the Court rules in McLane's favor, parties are likely to see more appeals, especially from the EEOC, which will increase litigation time and expenses, because now they will get a proverbial second bite at the apple, another chance to argue in favor of their position in the court of appeals. If the Court reverses the Ninth Circuit, parties are more likely to accept the district court's opinion and move forward because an appeal is more likely than not to be unsuccessful.

Next, there's a series of four cert petitions that all essentially ask whether an arbitration agreement can effectively bar employees from pursing workplace claims as a class action. These cases from the Second (Patterson v. Raymours Furniture Co.), Fifth (D.R. Horton, Inc. v. NLRB), Seventh (Epiq Systems Corp. v. Lewis), and Ninth (Ernst & Young, LLP v. Morris) Circuits.

The Court has not yet ruled on the cert petitions and, as such, no briefing schedule or oral arguments have been set.

In 2012, the NLRB held that individual arbitration agreements were unlawful because they violated Section 7 of the National Labor Relations Act, which protects employees' right to improve their working conditions through court proceedings. The Fifth Circuit Court of Appeals rejected the NLRB's ruling, but the Seventh Circuit has accepted it. This circuit split is now ripe for the Supreme Court's review.

These cases have significant implications for employees' ability to file class action and collective action cases against employers for all kinds of wrongful workplace conduct.

If you'd like a copy of the cert petitions filed by the parties regarding class action waivers, or if you'd like to discuss these cases in general or how they apply to you as an employee or an employer, please contact Lockaby PLLC today.