Dive Brief:
- On Oct. 3, the U.S. Supreme Court will start its fall term. Currently, employment law cases are far and few between as just a single labor-related decision currently is among the 31 cases granted review so far. But, reports Bloomberg BNA, things could change very quickly.
- As it stands, more than three dozen petitions seek review of appeals court rulings that interpret the Fair Labor Standards Act, the Employee Retirement Income Security Act, Title VII of the 1964 Civil Rights Act, the National Labor Relations Act, the Americans with Disabilities Act and other labor and employment laws, according to BNA.
- Supreme Court experts told BNA that some of those petitions look like "strong candidates for review." The one labor case so far revolves around a relatively minor issue — whether or not a former NLRB acting general counsel lost his power to perform that role after President Obama nominated him in January 2011 for a full term as the board's general counsel.
Dive Insight:
The BNA article offers a comprehensive look at the current employment-related cases that could make it into the Supreme Court's review lineup, but one of the major issues that will likely make it involves three petitions in cases addressing the NLRB’s position that class action waivers in arbitration agreements violate Section 7 of the National Labor Relations Act (NLRA).
While a Ninth Circuit decision and Seventh Circuit decision approved an NLRB ruling that said enforcement of class action waivers unlawfully restrict workers’ NLRA rights to engage in concerted activity for mutual aid and protection, the board also asked the court to review the Fifth Circuit’s rejection of the NLRB's position.
The circuit split began in May, but for employers and HR leaders trying to figure out how to proceed, they need the country's highest court to resolve whether or not they have a legal right to bar class action efforts by employees based on arbitration clauses, a growing trend today.