Circuit Split on Class Action Waivers
The U.S. Supreme Court has agreed to review the validity of class action waiver clauses in employment arbitration agreements to resolve a conflict among the federal appellate courts. As our firm has explained in prior blog posts, the U.S. Court of Appeals for the Ninth Circuit – the federal appellate court for the Western United States – has concluded in Morris v. Ernst & Young, LLP that a company violates the National Labor Relations Act (NLRA) by requiring employees to sign agreements precluding them from bringing class actions or other collective actions regarding their wages, hours, or other terms and conditions of employment. The U.S. Court of Appeals for the Fifth Circuit in NLRB v. Murphy Oil USA, Inc. has concluded to the contrary that the NLRA does not invalidate collective action waivers in arbitration agreements, and the U.S. Court of Appeals for the Seventh Circuit in Epic Systems Corp v. Lewis has agreed with the Ninth Circuit’s position. The Supreme Court has granted review in all three cases and consolidated the appeals because they raise an identical issue.
Given the current eight-member configuration of the Supreme Court, it is uncertain whether the Court’s review Continue reading
Newly elected President Trump will have a significant impact on shaping the executive agencies that impact employers, unions and the workplace in general, not to mention the fact that he may hand pick up to four new Supreme Court Justices. There is no doubt that legislation, regulation, and court cases during the Trump Administration will have lasting effects on employers in 2017 and beyond.
On February 20, 2017, Conn Maciel Carey’s Labor & Employment and OSHA attorneys will host an in-person briefing in its Washington, DC office to discuss the practical impact of the Trump Administration on the legal landscape in key areas for the workplace, including:
- The effort to repeal the Affordable Care Act;
- The rollback of regulation and former President Obama’s Executive Orders, including the Department of Labor’s overtime rule, the persuader rule, and OSHA’s anti-retaliation rule;
- The National Labor Relations Board under Philip Miscimarra’s Chairmanship;
- Anticipated court decisions from the Supreme Court, including whether employers can include class action waivers in arbitration agreements;
- OSHA enforcement, regulatory and policy developments to expect during the Trump Administration’s inaugural year.
Networking will start at 8:30 am, and the briefing will last from 9:00 am – 10:30 at 5335 Wisconsin Avenue, NW, Suite 660. To register for this complimentary briefing, please contact email@example.com.
We hope to see you there!
The Summer/Fall 2016 issue of Virginia Human Resources Today Magazine featured an article by Kara Maciel and Daniel Deacon, of Conn Maciel Carey’s national Labor & Employment Law Practice Group, regarding “The Impact of the 2016 Presidential Election on the Supreme Court and Employment Law.”
The article discusses the influence that the next President will have on shaping the Supreme Court – with the potential to nominate up to four new Supreme Court Justices – and the impact that this could have on employers, unions, and the workplace in the near future. In light of Justice Scalia’s death, the Court is more or less split between liberal and conservative Justices. The current political landscape leading up to the election suggests that Donald Trump will nominate a conservative justice that could step into Justice Scalia’s role on the bench as a heavy conservative justice and Hilary Clinton will nominate a candidate more akin to Justice Sotomayor – arguably one of the most liberal justices currently on the Supreme Court. The President’s ability to appoint the next Supreme Court justice to replace Justice Scalia and the potential to appoint three more will surely influence the law on several important labor and employment law issues including a union’s ability to collect fees from workers who do not join the union, the Affordable Care Act’s contraception mandate, and employer grounds to challenge class action lawsuits. Ultimately, there is a lot at stake in this year’s presidential election – not only will it determine who will lead the country’s executive functions and federal regulatory agendas, but it will also have a dramatic and long-standing impact on the future of the Supreme Court and judicial opinions impacting workers and workplace rights for years to come.
To read more on this interesting topic, here is a link to the full article in Virginia Human Resources Today Magazine.
By: Daniel Deacon
With the beginning of a new Supreme Court term this month, employers, employees, and labor unions are eagerly awaiting the Court’s decision in several cases concerning labor unions and class actions. However, there is one other case in the employment law field that the Court is scheduled to hear that will resolve a circuit split over the filing period for a constructive discharge claim under federal discrimination laws.
In April 2015, the Supreme Court unanimously agreed to hear Green v. Brennan to consider whether the filing period for a constructive discharge claim begins to run when an employee resigns or when the employer’s last allegedly discriminatory act occurred. The case dates back to 2008 when a 35-year veteran of the post office in Colorado was passed over for a promotion in the Boulder office in favor of a less qualified candidate. Green complained to a post office EEOC counselor that he was passed over for the promotion because he was African American. Green was later faced with a criminal charge stemming from allegations that he had not complied with agency procedures in processing subordinate employee grievances. This allegedly caused the post office to pay monetary damages and penalties. To avoid any potential criminal charges, the employer offered Green a position 300 miles away in Wyoming and a $40,000 pay cut. He alleges that his only other option was retirement and the employer’s actions amounted to constructive discharge. Green did not resign, however, until roughly three months after this deal was offered.
Both the U.S. District Court for the District of Colorado and the U.S. Court of Appeals for the Tenth Circuit ruled that Green’s claim was time-barred. The Tenth Circuit ultimately agreed with the Seventh Circuit and the D.C. Circuit in ruling that the clock began to run with the post office’s last discriminatory act – not when the employee resigned as a result of the retaliatory behavior.
The Supreme Court’s ruling will help resolve a circuit split that has even caused government agencies confusion. The case actually prompted the EEOC to file an amicus brief in support of the Tenth Circuit’s ruling. The Supreme Court’s decision will provide clarity in defending constructive discharge claims. The outcome of a constructive discharge claim will no longer hinge on the geographical location of an employee bringing the claim.
The timeliness rule is very important for employers to be aware of because it is outcome determinative. If the Supreme Court holds that the filing period starts to run at the employer’s last allegedly discriminatory act, then an employee who resigns and claims constructive discharge will have a much shorter window within which to file an administrative charge for constructive discharge after the resignation.
The Supreme Court is scheduled to hear the case on November 30, 2015. Stay tuned to the Employer Defense Report for updates regarding this case and several others that the Court is scheduled to hear this term.