United States: Supreme Court Preview: 2017-2018 Term

The U.S. Supreme Court will begin its 2017-2018 Term with no shortage of cases significant to employers and businesses. Cases to watch involve questions about employment arbitration agreements, Dodd-Frank Act's protections of internal whistleblowers, and state laws barring discrimination against LGBTQ people.

Arbitration Agreements

On the first day of the term, October 2, 2017, the Court will hear oral argument in three arbitration cases involving the National Labor Relations Act and the Federal Arbitration Act. Epic Systems Corp. v. Lewis, No. 16-285; National Labor Relations Board v. Murphy Oil USA, No. 16-307; Ernst & Young LLP v. Morris, No. 16-300 (consolidated for one hour of oral argument).

Arbitration agreements requiring employees to waive their right to bring or participate in a class action have long been enforced pursuant to the Federal Arbitration Act. The Court is asked to resolve a split among the circuit courts over whether such arbitration agreements violate employees' rights under the National Labor Relations Act to engage in "concerted activities" in pursuit of their "mutual aid or protection."

The National Labor Relations Board was represented by the Office of the Solicitor General in its petition for review in September 2016. However, in a friend-of-the court brief submitted in June 2017 (after the change of administration) in National Labor Relations Board v. Murphy Oil USA, the United States changed sides, now supporting such waivers. However, the NLRB, represented by General Counsel Richard Griffin, will separately continue to argue in favor of the Board's current position against the waivers.

The Court's decision will have serious implications for class and collective actions. Jackson Lewis has represented Murphy Oil since the inception of the company's case and, at the certiorari stage, Jackson Lewis attorneys Jeffrey Schwartz, Daniel Schudroff, and Collin O'Connor Udell filed the brief for Respondent Murphy Oil in support of granting the petition for a writ of certiorari, an unusual procedural posture.

For more information, see our article, Supreme Court to Review Validity of Class Action Waivers in Employment Arbitration Agreements.

Dodd-Frank

The Court will decide a split among the circuit courts over what actions an employee must take in order to be considered a "whistleblower" for the purposes of whistleblower protections under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Digital Realty Trust, Inc. v. Somers, No. 16-1276.

Does Dodd-Frank's anti-retaliation provision for "whistleblowers" extend to individuals who have not reported alleged misconduct to the Securities and Exchange Commission and thus fall outside the statute's definition of "whistleblower"?

As of this writing, oral argument has not been scheduled for this case. Jackson Lewis attorneys Collin O'Connor Udell, Rich Cino, and Joseph Toris filed an amicus brief at the certiorari stage and at the merits stage in support of Petitioner Digital Realty Trust, Inc.

For more, see our article, Supreme Court Set to Decide Whether Dodd-Frank Protects Internal Whistleblowers.

Anti-Discrimination

The Court will consider whether Colorado's public accommodations law, which bars discrimination against LGBTQ people, compels a business to make wedding cakes for same-sex weddings. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111.

Jack Phillips, who owns a custom-cake business, describes himself as a "cake artist." Phillips argues the Colorado violates the First Amendment by requiring him to create custom wedding cakes for same-sex weddings, in violation of his religious beliefs.

The Colorado Civil Rights Commission ruled that he engaged in sexual orientation discrimination under the Colorado Anti-Discrimination Act when he declined to design and create a custom cake honoring a same-sex marriage because doing so conflicts with his sincerely held religious beliefs. The Colorado Court of Appeals found no violation of the Constitution's Free Speech or Free Exercise Clauses. It ruled his speech to be mere conduct compelled by a neutral and generally applicable law. It reached this conclusion despite the artistry of his cakes and the Commission's exemption of other cake artists who declined to create custom cakes based on their message.

As of this writing, oral argument has not been scheduled for this case.

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.

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