KPA Blog

The Supreme Court kicked off its 2010-2011 term last week and has already heard one important employment case and is planning on hearing a number of cases that could have major impact on employer and employee relationships and employment litigation. First up was NASA v. Nelson (no “I dream of Jeannie jokes” please), which considers if the National Aeronautics and Space Administration violated the constitutional right to privacy when it conducted background investigations of federal contractors. Of special issue was a question about the use of illegal drugs. Although the case is specific to federal contractors, private employers could be held to a similar standard based on the court’s decision. There is also a pair of retaliation cases before the court.  In Thompson v. North American Stainless LP the court reviews how broadly the definition of retaliation is and in Kasten v. Saint-Gobain Performance Plastics Corp. the court will review a 7th Circuit Court ruling that the anti-retaliation provision of the Fair Labor Standards Act does not extend to an employee who complained orally to his employer about the company’s timekeeping practices. Both  cases has the ability to impact pending retaliation cases in the lower courts and increase the number of retaliation claims filed. Other cases to watch are:

Staub v. Proctor Hospital considers the question of whether an employer can be held liable for the discriminatory acts of supervisors who do not make final employment decision but influences the decision maker.

CIGNA v. Amara determines whether plaintiffs are required to show “likely harm” rather than demonstrable injury. In addition, the court will review if a participant in an Employee Retirement Income Security Act-governed plan (ERISA) must make to recover benefits based on an inconsistency between the summary plan description and the plan itself. Employers might want to start double checking plan documents now.

The state of Arizona’s ongoing battle against illegal immigration takes a new twist with the Supreme Court agreeing to review a lower court decision that upheld an Arizona state law providing for the revocation of the business licenses of employers that knowingly hire illegal immigrants. The law also requires Arizona employers to use E-Verify (Chamber of Commerce of the U.S. of Am. v. Candelaria). Given the number of states that already require the use of E-Verify in certain circumstances it may be time to add E-Verify to your hiring process.

The court has also announced that it will decide whether the Treasury Department can exclude all medical residents from an exemption from Social Security taxes  (FICA) provided to university students (Mayo Foundation for Medical Education and Research v. United States of America).

Advocates and detractors of arbitration are very interested in AT&T Mobility v. Concepcion, where the court will examine whether the Federal Arbitration Act pre-empts California law.

Look for updates as the cases are heard and judgement rendered in the KPA newsletter and on this blog.