Tag Archive: Supreme Court



Murphy Oil’s law: Solicitor General’s office reverses course in arbitration cases, supports employers
It is rare for the Office of the Solicitor General to change its position in a case before the Supreme Court after a change in administrations, even when the party in control of the White House changes. But that is exactly what happened last week, when the Trump administration weighed in on an important arbitration case: The office urged the justices to affirm the same decision that, on behalf of the National Labor Relations Board, it had previously asked them to review and overturn.

The about-face came in National Labor Relations Board v. Murphy Oil USA, in which the justices have agreed to decide whether agreements to forgo class actions or collective proceedings and instead resolve employer-employee disputes through individual arbitration are enforceable under the Federal Arbitration Act. In its petition for review on behalf of the NLRB, filed in September 2016, the Solicitor General’s office had argued that such agreements are not, because the National Labor Relations Act protects employees’ ability to engage in joint actions regarding the terms or conditions of their employment. On January 13, 2017, just seven days before the inauguration of President Donald Trump, the Supreme Court granted the NLRB’s petition, along with two others filed by employers (Ernst & Young LLP v. Morris and Epic Systems v. Lewis), and consolidated the three cases for one hour of oral argument.

Under the briefing schedule ordered in the case, the employers in all three cases filed their briefs on June 9, with briefs from the employees and the NLRB to follow on August 9. But on Friday (the deadline under the court’s rules to do so), the United States filed a “friend of the court” brief supporting the employers. The petition for review had been signed by seven lawyers from the NLRB, including its general counsel. Those NLRB lawyers were conspicuously absent from Friday’s brief, which was signed only by lawyers from the Solicitor General’s office. Acting Solicitor General Jeffrey Wall acknowledged that his office had previously filed a petition on behalf of the NLRB, “defending the Board’s view that agreements of the sort at issue here are unenforceable.” But, Wall continued, “since the change in administration, the Office reconsidered the issue and has reached the opposite conclusion.” In particular, Wall explained, the NLRB had not given “adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the” Federal Arbitration Act.

In a press release published on the NLRB’s website, the NLRB indicated that Wall had authorized it to represent itself in the Supreme Court proceedings in this case, and nothing in the brief of the United States suggests that the NLRB has changed its position. This means that the NLRB is likely to file its own brief, reiterating its original position in the case, in early August. And if the United States seeks and receives permission to argue in the case, as it virtually always does in cases in which it files “friend of the court” briefs, a lawyer for the United States would argue against a lawyer for a U.S. agency – a phenomenon perhaps even more uncommon than a change in position following a change in administration.

Supreme Court Employment Law Cases 2014-15

This is reprinted Oct 8, from MSNBC.com.  It is a list of Employment Law Cases to be heard by the US Supreme Court through Jun 2015.

On Wednesday morning, oral arguments began in the first of several major labor law cases the Supreme Court will take up this session. At dispute in Integrity Staffing Solutions, Inc. v. Busk, is a relatively arcane question about U.S. overtime compensation laws: When retail or warehouse employees go through security checks at the end of the day, are they still on the clock? Should they be paid overtime for standing in line and waiting to be screened?

It may sound like a minor point, but the court’s decision could send a shock wave through the American retail industry. If the nine justices rule that waiting for and receiving mandated security checks can be considered an integral part of a worker’s job, it will open the door for major class action lawsuits against some of America’s biggest retailers. Suits against Amazon, CVS and Apple are already on hold pending the Supreme Court’s ruling.

“I think it’s one of the most under-appreciated cases of the term, because it’s so arcane and technical that people don’t understand the dollars and cents that are involved,” said Marquette University labor law professor Paul Secunda. “We’re literally talking about billions of dollars here, because so many employers require their employees to go through some kind of security screening.”

Integrity Staffing Solutions, Inc. v. Busk concerns just one of those companies: A Nevada-based contractor that handles warehouse storage and logistics for Amazon.com. According to Jesse Busk and Laurie Castro, the two former Integrity Staffing employees named as plaintiffs in the original suit, workers at their warehouse were often required to stand in line for as much as 25 minutes after the official end of the work day, waiting for security to ensure they had not stolen anything. A brief filed by their attorneys says they were also required to empty out their pockets and pass through metal detectors in a process not unlike going through airport security.

A Nevada district court ruled that Busk and Castro were not entitled to overtime for the time they lost to the security check, but they won a reversal of that decision from the 9th Circuit. Then, last October, attorneys for Integrity Staffing petitioned the Supreme Court to give the case another look. Workers can’t demand overtime for time spent in security screenings, the attorneys argue, because passing through those screenings does not qualify as a compensable activity.

Integrity Staffing’s attorneys – one of whom is Paul Clement, the United States Solicitor General under President George W. Bush – argue that going through security screenings does not mean the standard test for whether a workplace activity is deserving of compensation: In the 1956 case Steiner v. Mitchell, the Supreme Court ruled that workers must only be paid for those activities which are an “integral and indispensable part of the principal activities for which covered workmen are employed.” The time spent passing through security checks is equivalent to the time they spend eating lunch or commuting to work, they argued: A task the employees might need to perform in order to do their job, but not one that’s actually central to the central to why the company employs them.

The 9th Circuit rejected this line of reasoning and sided with the plaintiffs because, it reasoned, the process of going through security checks is “integral and indispensable.” The essential work of the warehouse employees is ensuring that products ordered on Amazon.com get properly stored and shipped to their owners without becoming damaged or going missing; hence the 9th Court ruled that “the security clearances are necessary to the employees’ primary work as warehouse employees and done for Integrity’s benefit.”

“I think the issue is simple: When an employer tells you to do something, it’s work, and you ought to get compensated for it,” said Mark Thierman, an attorney representing Busk and Castro in both the Supreme Court case and their pending class action suit against Amazon. “Unless there’s a specific carve-out. There are some carve-outs for traveling, commuter time, and some other carve-outs for quasi-voluntary activities.”

Attorneys representing Integrity Staffing did not return a request for comment, but a spokesperson for Amazon reached out to msnbc to comment on the allegations that security checks tend to take nearly a half hour.

“We have a longstanding practice of not commenting on pending litigation, but data shows that employees walk through post shift security screening with little or no wait,” wrote Amazon spokesperson Kelly Cheeseman in an emailed statement.

The case has mobilized other interested parties on both sides. The industry group National Retail Federation (NRF) and the United States federal government have both filed amicus briefs siding with Integrity Staffing; two months ago, the labor coalition AFL-CIO filed a brief of its own supporting Busk and Castro.

Here is a link: