'Day of reckoning' on the horizon for employment issues
- The U.S. Supreme Court's October 2017 term may be a "day of reckoning" for some outstanding employment law questions, Christopher David Ruiz Cameron, vice dean and professor of law at Southwestern Law School, told attendees at the American Bar Association's Labor and Employment Law Conference last week.
- October 2016 was "the term that almost was," he said. The court's docket from that term will be remembered more for the industry questions it declined to address.
- In contrast, the Court is now poised to decide whether workers can waive their right to arbitrate claims collectively and whether service advisors at car dealerships are exempt from overtime pay. It may soon decide to answer some other, potentially more widely applicable, cases as well.
As stakeholders await the High Court's decision on collective arbitration waivers, the signs are encouraging for employers. SCOTUSblog reported that, following oral arguments in the case, the conservative majority appeared ready to approve employer arbitration agreements that require workers to waive their right to pursue claims collectively.
Cameron offered a similar prediction, saying he believes the waivers will be upheld. First, when the National Labor Relations Act comes up against another law (here, the Federal Arbitration Act) it typically loses out; "The NLRA is batting zero," Cameron told the ABA audience. Second, the High Court has recently exhibited hostility toward collective action; "I would expect the same to take place here," he said.
Finally, the Solicitor General's office, which is representing the U.S. government in the case, switched sides in the middle of the case, pitting it against the federal agency involved, the National Labor Relations Board. During an administration change, it's not unusual at all for the solicitor general to switch positions, Cameron said, "but it's almost unheard of in the middle of a case."
In addition to the arbitration and overtime cases, the Supreme Court may agree to decide whether Title VII of the Civil Rights Act of 1964 protects workers from discrimination based on their sexual orientation, Cameron noted. It also could soon have the opportunity to decide whether obesity amounts to a disability protected by the Americans with Disabilities Act — a question it previously declined to answer. There's been more and more litigation in this area, Cameron said, and it seems likely the High Court will have to step in.
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