United States: Justice Scalia's Death Throws SCOTUS Term Into Turmoil

Last Updated: August 3 2016
Article by May Mon Post

Justice Antonin Scalia's death created a 4-4 split among liberal and conservative-leaning Justices, rendering tidy scorecards and trends regarding this past Supreme Court session's employment law jurisprudence imprudent. The employment law "blockbuster" decisions, which many had hoped for, never debuted. Instead, the Court punted several cases back to circuit courts and issued deadlocked ties or rulings limited in scope.

The country is on the eve of what appears to be a hotly-contested presidential race, and the workplace law proclivities of the next Supreme Court Justice is anyone's guess. Moreover, with Justice Ruth Bader Ginsburg turning 83 this year and Justice Stephen Breyer turning 78, a Republican president could solidify conservative control over the Court for decades to come.

Similarly, with Justice Scalia's passing and Justice Anthony Kennedy turning 80 this year, a Democratic president might produce a decisively liberal Court. In short, we are several months away from being able to accurately predict where the Court is headed. Still, an accounting must be made of this past year, and the overall takeaway is that employees fared slightly better than management. Rather than grouping the cases into two orderly "wins and losses" columns, the 4-4 split leads us to separate the cases into six separate categories.

Group One: The Deadlock Loss

In a deadlocked 4-4 decision, the Court failed to reach a majority consensus in determining whether state employees who choose not to join a union must still pay a share of union dues to cover contract negotiations and other benefits ( Friedrichs v. California Teachers Association). For approximately 10 million public sector employees in states mandating agency shop fees, this means they must continue to pay a fair share fee in order to remain employed, and valuable revenue streams remain intact for public sector unions.

Employers had hoped that Friedrichs would become a stepping stone to further reduce the impact of unions on the American workplace. But the tie vote left any precedential "sea change" for another day, and the labor movement breathed a collective sigh of relief.

While it is possible that the Court will accept a case with similar issues for review in the future once a full complement of nine Justices has been restored to the bench, until that day, the status quo remains. Public sector unions will continue to fill their coffers with these mandatory fees and will continue to robustly lobby for a pro-union agenda in Congress and in state legislatures across the country.

Group Two: The Straight Losses

Employers were dealt straight-out losses in at least three decisions this past term. In a 6-3 decision, the Court in Gomez v. Campbell-Ewald Co. limited employers' ability to proactively and inexpensively end class action litigation before it picks up steam.

In most contexts, if the plaintiff accepts an "offer of relief" or "offer of compromise," the case ends. If the plaintiff refuses the offer, the plaintiff runs the risk of paying defendant's costs or the plaintiff's attorney loses out on a large chunk of fees. Thus, these offers serve as a cost-shifting benefit to defendants. They prevent plaintiffs from maintaining litigation past the point of reason and stop them from bleeding defendants dry into the unforeseen future.

But the Supreme Court held that a defendant making a complete offer of relief to a named plaintiff in a class action does not serve to kill the case, and more importantly, the plaintiff can still move forward with class action litigation even if the offer is refused. The Court declined to answer the hypothetical of whether a plaintiff's claim would become moot if a defendant deposited the entire amount of a plaintiff's claim in an account payable to the plaintiff, saving that question for a future case.

Although this decision did not arise in the labor and employment context, it will have some impact on employment class action litigation. Employers may lose some procedural tactics when trying to neutralize individual plaintiffs who bring putative class actions before the litigation gets too costly.  

In a 7-1 decision, the Court ruled that the filing period for a constructive discharge claim begins to run when an employee resigns as a result of discriminatory behavior, rather than the time of an employer's last act of discrimination that led to the resignation ( Green v. Brennan). This is a bad decision for employers and will likely lead to an uptick in legal claims filed by disgruntled former workers. It opens the door for former employees to file constructive discharge claims long after the alleged discriminatory conduct occurred by simply delaying their resignation indefinitely.

The Court agreed with the employee that the trigger date for the limitations period for a claim of constructive discharge is the date on which the employee resigns. The Court reasoned that because a claim of constructive discharge requires both the employer's predicate discriminatory conduct and the employee's decision to resign in response, the statute of limitations period should not begin to run until both events have occurred. The Court acknowledged, however, that the limitations period should begin to run when the employee gives notice of resignation rather than on the date the resignation becomes effective.

Green reinforces the need for employers to periodically check in with employees who have filed complaints of discrimination, harassment, and retaliation to confirm that the working environment has improved and there have been no further occurrences of objectionable conduct.

  In Heffernan v. City of Paterson, the Court held in a 6-2 decision that the First Amendment of the U.S. Constitution protects both actual and perceived political speech and expression by public employees. The Court made it clear that public employers will not be shielded from liability if they take an adverse employment action based upon an improper motive, even if it turns out that motive was based upon a factual error. In this case, perception was as good as reality. This decision does not impact private sector businesses, but should serve as a reminder to all employers to use caution before proceeding with employee discipline. 

Group Three: The Solitary Outright Victory

There was little to cheer about in the last term, but employers could celebrate at least one victory. In a 6-3 case, the Court ruled in favor of the enforceability of arbitration clauses in the DirecTV, Inc. v. Imburgia decision, reinforcing once again the Court's preference for the enforcement of arbitration provisions. Although the case did not specifically involve employment law, it should give a boost to businesses that utilize arbitration agreements with their workforces.

The decision reiterated that state courts must give due accord to the federal policy favoring arbitration. The case struck down a California court interpretation that failed to put an arbitration clause "on equal footing" with other contracts, holding that the state court's hostility to arbitration was incompatible with the requirements of the Federal Arbitration Act. It was a clear victory for employers in a commercial setting, and serves as a reminder that it may be advantageous for employers to enter into carefully drafted arbitration agreements with their workers.  

Group Four: The Good Punt

Perhaps as a not-too-subtle message to Congress that it should approve a ninth Justice to the Supreme Court bench, the Court issued quite a few opinions this term that effectively sidestepped a final decision. At least one of these "punted" decisions could be considered good news for employers.

In a 6-2 decision, the Court in Encino Motorcars, LLC v. Navarro issued a limited ruling by choosing not to resolve the central question of whether service advisors – those workers at car dealerships who talk with customers about work on their vehicles – are exempt under the overtime provisions of the Fair Labor Standards Act (FLSA). Instead, the Court took the U.S. Department of Labor (USDOL) to task for not explaining its 2011 reversal of an earlier position that service providers were not eligible for overtime.

The Court stated that the "unavoidable conclusion is that the 2011 regulation was issued without the reasoned explanation that was required in light of the USDOL's change in position and the significant reliance interests involved."

This means that, on remand, the 9th Circuit must determine whether service advisors are exempt from overtime under the FLSA, and at some point in the future the appellate court will issue a new ruling following the guidance provided by the Court. Dealerships outside of the 9th Circuit's reach, however, have no controlling authority preventing them from continuing to conduct business as usual. For dealerships within the 9th Circuit, and until the 9th Circuit issues a new opinion, uncertainty remains as to whether the exemption applies.

Group Five: The Bad Punt

In Spokeo, Inc. v. Robins, the Court issued a "no decision" on an issue important to employers facing class action litigation. The Court decided that the 9th Circuit Court of Appeals needed to review again a question of whether plaintiffs have standing to pursue class action claims on behalf of themselves and others similarly situated if they cannot prove that they suffered actual harm.

By failing to decide the question one way or the other, the Court effectively delayed a determination of whether employers will have another tool to help curtail costly class action claims, or whether they will face a substantial increase in the number of such claims.

Group Six: The Other Punts

Three other high-profile cases with potentially wide-ranging effects were essentially punted by the Court. First, in CRST Van Expedited, Inc. v. EEOC, the Court declined to issue a definitive ruling on whether an employer is entitled to recover nearly $5 million in attorneys' fees and costs from the Equal Employment Opportunity Commission (EEOC) after the employer prevailed in a sexual harassment lawsuit brought by the agency.

The Court unanimously (8-0) remanded the case back to the 8th Circuit Court of Appeals to determine, among other things, whether the EEOC's conduct in the litigation was "frivolous, unreasonable, or groundless" so as to support the fee award. The Court, however, ruled that employers could be considered prevailing parties and entitled to fees even if they did not win on the merits, which could prove to be a useful ruling.

Second, in Zubik v. Burwell, the Court declined to rule on whether religiously affiliated nonprofits can be required to affirmatively "opt out" of providing contraceptive coverage to their employees, which would have triggered separate contraceptive coverage directly from their issuers. Instead of publishing a decision, the Court took the unusual approach of suggesting that the parties work out a compromise.

To resolve the issues around such a compromise, the lower court decisions were vacated and the consolidated cases were remanded for further rulings by their respective courts of appeal. Zubik has significance for all employers because it suggests the eight-Justice Court may be looking for ways to delay decisions until a ninth Justice is appointed and a full complement of Justices has been restored to the bench.

Finally, in another rare 4-4 decision, the Court in United States v. Texas left in place a nationwide injunction blocking President Obama's Executive Action to spare more than 4 million unauthorized immigrants from deportation and allow them work. The Court's decision did not shed any light on the merits of the case. As such, the Executive Action remains subject to an injunction blocking its implementation.

The case will now return to a Texas judge to decide how to proceed with the case on the merits of the argument. No matter which side prevails, the case will almost assuredly return to the appeals court, and could one day surface again at the Supreme Court. While the case proceeds in a lower court, the undocumented workers, who would have benefited from the Executive Action, will not be able to seek protection from the threat of deportation and will remain ineligible for work authorization in the United States.

Employers' obligations with respect to obtaining proper documentation will continue, however, so you should use this case as a reminder to ensure compliance with all applicable federal immigration laws.

Preview Of Next Term

Stay tuned for a preview of the 2016-2017 SCOTUS term before the Court's October commencement. As always, Fisher Phillips will be there to issue same-day analysis and summaries of all of these new cases, providing background and context for each decision, explaining the Court's reasoning in layman's terms, and discussing the impact on employers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

May Mon Post
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.