Usually I don’t have any problem finding something to write about for the blog. I thought about writing about the Red Sox this week and how I was at game two of the playoffs. Yes, it was great to see Big Papi hit two home runs and the Sox win—but what I really had been hoping was to see my beloved Cleveland Indians and Terry Francona at Fenway, and that never materialized. Besides, what do the Red Sox have to do with Maine at work (although first base coach Arnie Beyeler used to manage the Portland Sea Dogs and third base coach Brian Butterfield is an Orono native).
Then I thought about writing about the shutdown. But there is little I can say that you don’t already know. I could tell you how one of my clients is waiting for a check from the government in settlement of her case—and who knows how long it will be now before she sees her money. I could tell you about another client who tentatively has settled her case—but she can’t do so because the defense attorney wants to make sure that the EEOC will sign off on the settlement, and of course the EEOC is closed. I could tell you about a third client who wants to settle her case—but she can’t get an earnings statement she needs from Social Security. These little things never make the papers—the shutdown affects us all in unexpected ways.
But then my colleague reminded me that yesterday was the first Monday in October. For lawyers that can only mean one thing—the opening of the Supreme Court term. For workers and their unions, that means you should fasten your seatbelts—the ride is likely to be rough.
Last year, at the end of the 2012-13 term, a divided 5-4 high court made it harder to sue employers by narrowing the definition of supervisors and making it harder to prove retaliation claims. In addition, two months earlier, the Supreme Court made it easier for employers to avoid class action wage and hour suits by finding that employers could render such suits moot simply by paying the named plaintiff what she is owed, even though other class members are left in the lurch. Employers won all the big cases.
This year, there are many more labor and employment-related cases on the docket; eight altogether with the possibility of several others. Two involve important decisions affecting unions—whether decisions by recess appointees to the National Labor Relations Board are enforceable and whether voluntary agreements by employers to remain neutral about the unionization of their employees violate the bribery provisions of the NLRA. A victory for employers in the NLRB case not only would invalidate hundreds of NLRB decisions including important decisions concerning social media and protected concerted activity, but arguably would upset thousands of decisions going back to recess appointments by the Reagan administration.
Other cases to watch include:
- whether employers (and thus employees) must pay into Social Security for severance payments (Uncle Sam usually wins tax cases)
- whether employees suing state and county governments for age discrimination have to first file charges of discrimination with the EEOC
- whether whistleblowers who complain about actions by privately held contractors or subcontractors to publicly held companies are protected from retaliation under the Sarbanes-Oxley Act of 2002 (a dry subject if ever there were one, apparently livened up in the briefs with a discussion of the George Clooney movie “Up in the Air” featuring Maine’s own Anna Kendrick)
- whether the statute of limitations to file a claim governed by ERISA (which includes not only claims for pensions but also for health and disability benefits) can be shortened by the terms of the plan.
Another case, Young v. UPS, which involves an employer’s obligations to provide accommodations to pregnant employees under the Pregnancy Discrimination Act, if accepted could have broader impact for employees than any of the cases mentioned above.
So, the 2013-14 term promises to be action-packed for employers and employees. Unfortunately, if the past is prologue, I can probably predict the outcome of the cases already. And it doesn’t look good for Mainers at work—or workers anywhere else.
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