Hunton Employment & Labor Perspectives

The EEOC is asking the Ninth Circuit to clarify the U.S. Supreme Court’s new standard for determining the type of harm that constitutes an adverse job action in discrimination cases and to apply that standard or remand the case at issue so the lower court can apply the new standard.

On July 2, 2024, the Occupational Safety and Health Administration (OSHA) released a long-awaited proposed rule to prevent heat-related injuries and illnesses in the workplace.  OSHA initiated the rulemaking process in October 2021 as part of its ongoing heat-related illness prevention initiative.

We recently posted an article on Hunton’s Retail Law Resource blog regarding the U.S. Supreme Court’s decision to grant cert E.M.D. Sales, Inc. v. Carrera.  In that case, the Supreme Court is expected to clarify the burden of proof that employers must meet in order to prove that employees are exempt from the minimum wage and overtime requirements under the Fair Labor Standards Act.

On June 27, 2024, the Supreme Court released its opinion in Securities and Exchange Commission v. Jarkesy, which weakens the enforcement power of administrative agencies to adjudicate certain matters within the agency itself.

The Supreme Court of the United States recently granted certiorari in Stanley v. City of Sanford, Florida—a consequential case about whether the Americans with Disabilities Act (ADA) covers former employees.  The case has practical significance for employers. 

On June 13, 2024, the Supreme Court issued its opinion in Starbucks v. McKinney and, in doing so, clarified the standard applicable to the National Labor Relations Board’s (the “Board”) requests for preliminary injunctions under Section 10(j) of the National Labor Relations Act (the “Act”).

On April 23, the Supreme Court heard oral argument in Starbucks Corp. v. McKinney, a case which examines what test the federal courts should apply when considering whether to grant preliminary injunctions under Section 10(j) of the National Labor Relations Act. Here’s what employers need to know while waiting for the Court to issue their opinion.

Employers contemplating a forced transfer of a worker will need to grapple with a new standard set out by the US Supreme Court under Title VII of the Civil Rights Act of 1964, the law that makes it unlawful to discriminate against workers based on various protected characteristics. The Supreme Court in Muldrow v. City of St. Louis issued an important ruling that clarifies the evidentiary standard employees must meet when asserting a discriminatory transfer claim against an employer under Title VII.   Prior to the Court’s decision, there was a Circuit split with most courts holding that an employee had to show a significant employment disadvantage to prevail on a claim that their transfer violated Title VII.  In its opinion, the Supreme Court held instead that an employee must show (i) the employer’s action was discriminatory, and (ii) that the employee suffered “some harm” respecting an “identifiable term or condition of employment” to state a claim for discrimination under Title VII.  The majority noted that the Court’s “some harm” standard is a downward departure from the type of evidence that lower courts had traditionally required to show discrimination under Title VII – namely, that an employee must suffer “significant,” “material,” or “serious” harm to have an actionable claim. 

On February 8, 2024, the U.S. Supreme Court issued a unanimous opinion holding that a whistleblower with a retaliation claim under the Sarbanes-Oxley Act of 2002 (“SOX”) does not need to establish that their employer acted with “retaliatory intent” to succeed on their claim. An employee must merely show that their protected whistleblowing activity was a “contributing factor” in an adverse employment action against them by their employer. Murray v. UBS Securities, LLC, 144 S.Ct. 445 (2024). An employer’s retaliatory intent or lack of animosity is “irrelevant.”  Id. at 446.

The legal path between employee arbitration agreements under the Federal Arbitration Act (“FAA”) and representative claims under the California Private Attorney General Act (“PAGA”) has been anything but smooth. A new (albeit unpublished and uncitable) case, Piran v. Yamaha Motor Corp., et al., No. G062198, 2024 WL 484845 (Cal. Ct. App. Feb. 8, 2024)(unpub.) (“Yamaha”), helps to illustrate the challenges and unanswered questions lingering in the wake of this rapidly-developing area of law.

On September 29, 2023, the U.S. Supreme Court granted certiorari in Bissonnette v. LePage Bakeries Park St. LLC, a case from the Second Circuit Court of Appeals involving application of the Federal Arbitration Act’s (“FAA”) exemption for transportation workers.

Several prominent business groups filed an amicus brief in the Supreme Court of the United States on July 24 urging the Court to reform its standard on agency deference and highlighting the unpredictability caused by the National Labor Relations Board’s (“NLRB”) current application of the lenient standard.

On June 30, 2023, the U.S. Supreme Court in 303 Creative, LLC v. Elenis held that the First Amendment prohibits Colorado from compelling a website designer to engage in expressive conduct that conflicts with her beliefs.

On June 29, 2023, the U.S. Supreme Court in Groff v. DeJoy clarified the “undue hardship” standard under which it can deny a religious accommodation under Title VII of the Civil Rights Act of 1964.  In a unanimous opinion authored by Justice Alito, the Court rejected a “de minimis cost” test, and held that an employer denying a religious accommodation must show that the burden of granting an accommodation “would result in substantial increased costs in relation to the conduct of its particular business.”

The U.S. Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College decided that the race-based admissions programs at Harvard College and the University of North Carolina (the “Schools”) violated the Equal Protection Clause of the Fourteenth Amendment. While the Court answered the question for publicly funded schools, it is an open question whether, and how, the Court’s decision will impact affirmative action and diversity programs for private employers, as discussed in more detail below.

OFCCP’s Director Leaves Agency For the White House

On March 29, 2023, the OFCCP announced Director of the Office of Federal Contract Compliance Programs (OFCCP), Jenny Yang, will leave her position to take on a new role at the White House. Specifically, Yang will join the White House Domestic Policy Council as a deputy assistant to the President for racial justice and equity.

The U.S. Supreme Court agreed to hear a case that will impact how employers across the country respond to their employees’ requests for religious accommodation. Depending on how the Court rules, it may become much more difficult for companies to comply with or deny religious accommodations under Title VII of the Civil Rights Act of 1964.

As we previously reported, the U.S. Supreme Court was poised to resolve a circuit court split in Robyn Morgan v. Sundance, Inc. (No. 21-328), regarding whether a party must prove that it was prejudiced when arguing that the other party waived its right to arbitration by failing to compel arbitration at the outset of litigation. 

The Supreme Court has granted a temporary stay of the OSHA Emergency Temporary Standard (ETS), otherwise known as the OSHA vaccine mandate. The Court ruled that OSHA had exceeded the authority delegated to it by Congress under the Occupational Safety and Health Act. In making this finding, the Court held that OSHA only has the authority to issue workplace safety standards, not broad health measures. The concurring opinion focused upon the “major questions doctrine,” which requires Congress to speak clearly when delegating authority of “vast economic and political significance” to an administrative agency.

The US Supreme Court’s recent decision in Cedar Point Nursery et al. v. Hassid et al., No. 20-107 (June 23, 2021), a case pitting agricultural employee rights to freedom of association and self-organization under California law, against employer private property rights of California agricultural employers, marks a clear victory for property rights.  

In a 6-3 decision, the U.S. Supreme Court ruled today that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on an employee’s sexual orientation and/or transgendered status.  Though Title VII does not expressly mention “sexual orientation” or “transgender,” the Court held that “homosexuality and transgender status are inextricably bound up with sex” and that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”—a protected class under Title VII.

In late January 2019, the Seventh Circuit Court of Appeals ruled that the Age Discrimination in Employment Act (“ADEA”) does not allow outside job applicants to bring disparate impact claims.  The plaintiff in the case, Dale Kleber, an attorney, is now asking the Supreme Court to review that decision.

Facts and Procedural History

In a unanimous 9-0 decision authored by Justice Ginsburg, the U.S. Supreme Court resolved a split amongst the circuit courts of whether filing a charge of discrimination pursuant to Title VII is a jurisdictional prerequisite or a claims-processing rule. Prior to the Supreme Court’s resolution of the issue, the First, Second, Third, Fifth, Sixth, Seventh, Tenth, and D.C. Circuit Courts all held that the administrative exhaustion requirements under Title VII are not jurisdictional, but rather an affirmative defense that can be waived by an employer if not timely raised. On the other side of the circuit split, the Forth, Ninth, and Eleventh Circuit Courts held that the administrative exhaustion requirement is jurisdictional, and that a federal district court has no authority to adjudicate Title VII claims if the plaintiff has not first filed a charge with the EEOC. In its decision, Fort Bend County v. Davis, all nine justices agreed that the charge filing requirement under Title VII is not jurisdictional, and therefore can be waived by a defendant if not timely raised.

In  a 5-4 decision, the U.S. Supreme Court slammed the door shut on class arbitration unless specifically authorized by the parties.  The decision, Lamps Plus, Inc. v. Varela, reaffirmed the Court’s prior precedent that arbitration is a matter of consent, and that “[s]ilence is not enough” to infer consent to class arbitration. 

After languishing on the docket for almost a year, the United States Supreme Court agreed today to hear three cases concerning the scope of Title VII’s protections for LGBT employees.  The Court is now set to decide two separate, but related questions: (1) whether Title VII protects against discrimination on the basis of sexual orientation; and (2) whether Title VII protects against discrimination on the basis of transgendered status.

As we previously reported here, here, and here,  there has been a wave of federal court litigation over the last two years on this topic, with various ...

This morning, the U.S. Supreme Court punted a key Equal Pay Act (“EPA”) case back to the Ninth Circuit because the decision’s author, Judge Stephen Reinhardt, passed away shortly before the decision was formally issued.

Yovino v. Rizo is a significant EPA case that has been winding its way through the courts for years.  In 2017, a Ninth Circuit panel held that a wage differential based on prior salary can qualify as a “factor other than sex” under the EPA.  But, in 2018, the Ninth Circuit, sitting en banc, came to the opposite conclusion: “prior salary alone or in combination with other factors cannot justify a wage differential.”  The en banc opinion was authored by Judge Reinhardt, who passed away 11 days before the decision was issued.  The opinion acknowledged the Judge’s passing with a footnote stating that voting had been completed and the decision was written prior to his death. 

The United States Supreme Court has agreed to resolve a growing split of authority among lower federal circuit courts regarding the requirement under Title VII of the Civil Rights Act of 1964 (“Title VII”) that individuals must file a charge of discrimination with the EEOC before bringing Title VII claims against their employer. Specifically, the Supreme Court is set to decide the following issue: “Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.”

In a rare win for plaintiffs seeking to avoid arbitration, the U.S. Supreme Court rejected a trucking company’s attempt to compel arbitration in a driver’s proposed minimum wage class action.  The Court held that the Federal Arbitration Act’s exemption for interstate transportation workers applies not only to employees, but also to those classified as independent contractors.

The Supreme Court once again has shown its strong preference for enforcing the terms of arbitration agreements as written by the parties.  In Henry Schein Inc. v. Archer & White Sales Inc., Justice Kavanaugh’s first written opinion, the Court held that when an arbitration agreement delegates the threshold question of arbitrability to an arbitrator, the arbitrator, not a court, should decide the question, even if it is clear to a court that the dispute is not covered by the arbitration agreement.  This unanimous opinion adds to a growing body of recent Supreme Court case law making clear that the terms of arbitration agreements, like any other contract, should be enforced as written and without policy considerations or exceptions.  

The U.S. Supreme Court held yesterday that the Age Discrimination in Employment Act (ADEA) applies to state and local government employers, regardless of their size.  In doing so, the Court unanimously adopted the Ninth Circuit’s reading of the statute when four other Circuits held the opposing position.

The combination of a quirky procedural posture and broad language used by the Supreme Court in 1941 have left Home Depot trapped in a North Carolina state court defending against a class action, despite the removal provisions of the Class Action Fairness Act.  On September 27, 2018, the Supreme Court granted certiorari to decide whether CAFA authorizes removal of class action counterclaims when its requirements are otherwise met.

In a highly anticipated decision, the U.S. Supreme Court ruled that public employee unions may not collect involuntary fees from the public employees they represent.  Janus v. AFSCME, U.S., No. 16-1466, 6/27/18.  Here are the key points of the court’s decision:

Janus involved state employees represented in a bargaining unit by an Illinois public employee union.  The union was the exclusive collective bargaining representative of all the employees in a bargaining unit.  The union bargained with the State of Illinois for a collective bargaining agreement covering the employees in bargaining unit.  The union also engaged in other activities not directly related to the bargaining and administration of the collective bargaining agreement.

In China Agritech, Inc. v. Resh, the U.S. Supreme Court held that putative class members cannot rely on equitable tolling to file new class actions under Rule 23 of the Federal Rules of Civil Procedure.

Resh was the third shareholder class action suit filed against China Agritech, Inc. under the Securities Exchange Act of 1934. The plaintiffs in the two previous suits settled their claims after the court denied their motions for class certification.

In one of the most anticipated decisions of the term, the U.S. Supreme Court, in a 7-2 decision, dodged the key constitutional questions in Masterpiece Cakeshop v. Colorado Civil Rights Commission, issuing a narrow opinion finding that the Colorado Civil Rights Commission displayed “impermissible hostility” toward a baker’s sincerely held religious beliefs.

In a major win for employers, the U.S. Supreme Court held that arbitration agreements with class action waivers do not violate the National Labor Relations Act (“NLRA”).  The Court’s narrow 5-4 decision paves the way for employers to include such waivers in arbitration agreements to avoid class and collective actions.

The U.S. Supreme Court voted to hear an appeal of the Ninth Circuit’s decision in Varela v. Lamps Plus, Inc.  The Court is expected to decide whether workers can pursue their claims through class-wide arbitration when the underlying arbitration agreement is silent on the issue.  The case could have wide-reaching consequences for employers who use arbitration agreements.

A single paragraph in an otherwise routine opinion could have reverberations in FLSA exemption cases for years to come.

Earlier this week, in a 5-4 decision, the Supreme Court held in Encino Motorcars LLC v. Navarro et al. that auto service advisors are exempt under the FLSA’s overtime pay requirement.  While the case resolved a circuit split for a discrete exemption, the Court’s decision has broad implications for all employers.

Last week, the United States Supreme Court released its decision in Digital Realty Trust v. Somers, where the Court unanimously adopted a narrow reading of the Dodd-Frank Act’s anti-retaliation “whistleblower” provision.  The Court held that the provision applies only to individuals who report securities violations directly to the Securities and Exchange Commission.

The case involved Paul Somers, a former employee of Digital Realty Trust, who alleged that the company terminated him after he internally reported suspected violations of securities law by the company.  Somers, however, never reported any of the suspected securities violations to the SEC.

In the employment law arena, plaintiffs frequently bring in federal court both federal and state law claims arising from the same nucleus of fact.  Plaintiffs can do so thanks to 28 U.S.C. § 1367, which permits federal courts to exercise supplemental jurisdiction over state claims arising from the “same case or controversy” as the federal claims.  28 U.S.C. § 1367(a).  If the federal court dismisses the federal claims, often the court will decline to retain jurisdiction over just the state law claims and, consequently, dismisses those, too.  See 28 U.S.C. § 1367(c)(3).  If that happens, how long does the plaintiff have to re-file in state court the state law claims, which have not been adjudicated on the merits?  The answer lies in 28 U.S.C. § 1367(d), which reads in relevant part:

On January 8, 2018, the United States Supreme Court denied a petition for certiorari seeking to overturn the Fourth Circuit’s new joint employer test under the Fair Labor Standards Act.  As a result, employers will continue to be faced with differing joint employer standards in the various federal circuits.