First Monday in October - Ho Hum for L&E Types

Posted 5:52 PM by Michael Fox

Tomorrow marks the start of the Supreme Court's new term, and at least for private sector Labor and Employment types, there's not a lot to get excited about. (From the employer side of the docket at least the Court has not taken a retaliation case!)

In fact, at least according to one of the Justices the Court does not have many exciting civil cases in general for a somewhat surprising reason, Justice Kennedy says fewer “big civil cases” on Supreme Court’s docket due to arbitration.

It's not as if there are none and as always, the SCOTUS Blog is great source of information. The current cases with a labor and employment flavor include:

• 10-553 Hosanna-Tabor Church v. EEOC.  Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship. 
  
  This is actually set for argument in the first week of the Court's term and is a private sector case. As a general rule the lower courts have interpreted the ministerial exception to Title VII broadly, and I would anticipate the same by the Supreme Court.
  
  Update: Although I doubt that it has little relevance to the decision, I was struck by this article, Red Mass Marks Start of Supreme Court Session  from today's New York Times discussing The Red Mass, at least the Supreme Court style which is held on the 1st Sunday in October at St. Matthews Cathedral in D.C.  This Court now consists of six Catholics, three Jewish members and no Protestants.
• 10-1016  Daniel v. Maryland Court of Appeals.  Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.
• 10-1121 Knox v. SEIU.  (1) May a state, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and provides an opportunity to object to its exaction? (2) May a state, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures. 

If you were looking for a case that might have some indirect impact, you might look at a case involving EPA procedures

10-1062  Sackett v. EPA.  (1) Whether petitioners may seek pre-enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 §704; and (2) whether, if not, petitioners’ inability to seek pre-enforcement judicial review of the administrative compliance order violates their rights under the Due Process Clause?

Although I have not compared the statutes I can see some parallels to whistle blower statutes, e.g. Sarbanes Oxley, which allow for pre-hearing reinstatement during the pendency of the case.

Probably more important are potential cases where cert is pending that could be accepted.

• 10-1546  Carder v. Continental Airlines. Whether the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provide service members a cause of action when their civilian workplace is sufficiently poisoned with harassment based upon military status so as to alter conditions of their employment.
  
  The  5th Circuit decision held as a case of first impression that there was no cause of action. (The matter was handled by Jeff Londa and Flynn Flesher of the Houston office of Ogletree Deakins.)
  
  Update 10.3.11:  The Court has denied cert in today's Order List.
• 10-1163  Opp v. Office of the State's Attorney of Cooke County.  For purposes of the Age Discrimination in Employment Act, who is a worker “at the policy making level”?
  
  Update 10.3.11: The Court has denied cert in today's Order List.
• 11-204 Christoper v. SmithKline Beacham Corp. (1) Whether deference is owed to the Secretary of Labor's interpretation of the Fair Labor Standards Act's outside sales exemption and related regulations; and (2) whether the Fair Labor Standards Act's outside sales exemption applies to pharmaceutical sales representatives.

After last year's blockbuster session on labor and employment issues, it wouldn't be the end of the world for a year without anything of great significance.

On a personal note, I can never note the opening of the Court's new term without remembering fondly one of my former partners, Bob Mebus, who always used the occasion to change to his fall wardrobe. (In Texas a somewhat arbitrary line I can assure you.) Although Bob, who was one of the great traditional labor lawyers in Texas is now retired, I would be surprised if he does not still mark the occasion.

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