Monday, June 14, 2010

Pending SCOTUS Employment Law Cases

I took a quick glance at the SCOTUSblog list of undecided Supreme Court cases this morning to see what's left on the employment law front. By my count, there are three four (see update below) clearly employment law cases left:

New Process Steel v. NLRB: The Court will likely decide whether a 2-member NLRB can decide cases under the NLRA. For Lawffice Space coverage see: NLRB Already Here? Returns? In the Distant Future?, 2-Member NLRB Hits SCOTUS, and New Regime - SCOTUS, EEOC, NLRB.

City of Ontario v. Quon: The Court will likely address public employee privacy rights in text messages on an employer-issued pager. For Lawffice Space coverage see: Text Message Privacy Hits SCOTUS, and Text Privacy at SCOTUS: Privacy, Policies, Privilege, and E-Discovery.

Rent-A-Center v. Jackson: The Court should determine whether a federal district court must "decide the threshold question of arbitrability when a plaintiff challenges an arbitration agreement as unconscionable." On Lawffice Space: Arbitrability of Arbitrability Determination Under Arbitration Act Hits SCOTUS, and Arbitration Agreement Unconscionability Determination Hits SCOTUS.

Of course, a creative attorney can turn just about any case into an employment law case. For example, the Supreme Court will decide whether the Second Amendment right to bear arms is incorporated (applied to state action) in McDonald v. Chicago. If decided on "privileges or immunities" grounds, it could be an employment law blockbuster (though oral arguments indicate such a result is not likely). In theory, it could also lead to Second Amendment Unemployment Compensation.

And you never know when a commerce clause case could restrict government's authority to regulate, or a University free speech case will impact public employment, or a procedural question on attorney's fees or pleading standards will shake the employment law world. We'll just have to wait and see.

Drop a comment if I missed any cases you think should be on here, or if you'd like to show off your own creative lawyering by turning a not-employment law case into an employment law case.

Update: Ross Runkel alerted me to my omission of Granite Rock Company v. Teamsters ("Whether a federal court has jurisdiction to determine collective bargaining agreement formation and whether a §301(a) action is available against a union that is not a direct signatory to the collective bargaining agreement." - SCOTUSBlog). Mr. Runkel is hereby rewarded with a link to his coverage of the case on LawMemo. Thank you!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.