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New SCOTUS Term Starts With A Whimper…Will It End With A Bang?


The Supreme Court term that wrapped up in June was one of the most exciting sessions for workplace law in recent memory, with several blockbuster decisions impacting a wide range of labor and employment law issues. From wage-and-hour exemptions to same-sex wedding cakes, class action waivers to agency shop fees, retaliation standards to travel bans—the past term had it all. So employers might be eagerly anticipating the current term, hoping for a repeat performance.

If you’re in this camp, we have some bad news for you. The current Supreme Court (SCOTUS) term that just kicked off this week includes but four cases that will have an impact on labor and employment matters, and none are particularly exciting. While there’s always a chance that high-profile cases will be added to its docket as the term unfolds—especially if a ninth Justice is seated—we’ll be in “wait-and-see mode” for the next few months to see if things heat up. For now, let’s take a brief look at the four cases the Court will be deciding this term.

Age Discrimination In The Public Sector

Unless you’re a small, public sector municipality, you can skip this part of the preview. The Mt. Lemmon Fire District v. Guido case only affects those state government entities with fewer than 20 workers. The case will answer the question of whether the federal Age Discrimination in Employment Act (ADEA) governs those public bodies with under 20 employees.

The statutory language of the ADEA is clear in that it only applies to private employers with 20 or more workers, but how that limit applies to public sector employers is unclear. The statute first defines employers as those organizations “who have 20 or more employees,” but later says it “also” means “any state or political subdivision of the state.” So does that mean any public entity, no matter how small, or just those with 20 or more workers? That’s the open question.

In the case, two firefighter captains for the Mt. Lemmon Fire District in Arizona were terminated by their employer. They claim that the reason for their termination was their age (46 and 54) and brought an ADEA claim against their former employer. The lower federal court dismissed their claim because the fire district had fewer than 20 employees, but the 9th Circuit Court of Appeals reversed the decision and revived the case. That set up a classic split in the circuits, as the four previous federal appellate courts to have looked at the issue ruled differently. The case was argued on the first day of the 2018-2019 SCOTUS term, October 1. Expect a ruling by the early part of 2019.

Three Arbitration Cases

The Court will also examine three cases during the early part of this term involving the ever-popular issue of arbitration:

Will There Be Fireworks Later In The Term?

Every session, the Supreme Court adds many cases to its docket as the term unfolds. We expect this year to be no different, so a few more labor and employment cases should be teed up for resolution before the current term ends in June 2019. But will they be blockbuster-type cases, or more technical and narrowly focused in nature?

The answer to that question might be determined depending on whether and how soon a ninth Justice can be seated. The SCOTUS is usually loathe to accept critical cases to its docket if the bench is primed for a 4-4 split. During the period of time between Justice Scalia’s death in February 2016 and Justice Gorsuch’s elevation to the bench in April 2017, the Court rarely took up significant matters and often issued deadlocked decisions. The likelihood of significant decisions will increase if another Justice is confirmed before the end of this term. And if that happens, the likely issues that the court could take up include:

Fisher Phillips publishes same-day alerts summarizing each and every Supreme Court case, presenting them in an easy-to-understand but comprehensive format. If you aren’t receiving them, you can subscribe here and stay up to speed on all of the Court’s doings this term.

 This Legal Alert provides an overview of several Supreme Court cases. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.



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