Monday, October 7, 2013

SCOTUS 2013-14 Labor Law Preview

Another Supreme Court season is upon us! The Court has a pretty decent lineup of labor law cases this year. I'll break the employment law cases into a separate post. Let's cut to the chase:

Recess Appointments
NLRB v. Noel Canning will probably get the most media attention of the bunch. The case will address whether President Obama's appointments to the NLRB were constitutional. Per the cert. petition, the questions presented are:
1. Whether the President's recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.

2. Whether the President's recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.
This case could have a big impact on the President's recess-appointment power beyond just the NLRB. Argument set for December 4, 2013.

Compensation for Changing Clothes
Sounds silly, right? But, in Sandifer v. U.S. Steel, steel workers claim they spend up to a few hours per week changing into their work attire. Under an FLSA exception, "changing clothes" may be excluded from compensation by a CBA.

Here, the "clothes" include things like flame-retardant jackets, metatarsals (steel-toed boots), and "snoods" (head and neck protectors). In other words, "donning and doffing" safety gear that is ordinarily compensable - but the gear is kind of clothes-y so maybe it's not. SCOTUS will hopefully draw the line.

Fun fact: I interned at a U.S. Steel plant in Pittsburgh in the IT department in 1998. When I went into the mill I wore the jacket and metatarsals (and hardhat and goggles), but no "snood" - I guess they didn't care that much about me ;-). Argument set for November 4, 2013.

Mandatory Dues
In Harris v. Quinn, the Supreme Court was petitioned to review the following questions:
1. May a State, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the State for greater reimbursements from its Medicaid programs?

2. Did the lower court err in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review?
This could make union dues-collecting more difficult. Set for argument on November 13, 2013. Update: Not yet set for argument, but probably January of February 2014.

Labor-Management Organizing Agreements
In Unite Here Local 355 v. Mulhall, the employer promised not to oppose union representation and granted union access to its property, and the union agreed to forego rights to picket, boycott, etc. The question presented:
Whether an employer and union may violate § 302 [of the Labor-Management Relations Act] by entering into an agreement under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer’s property and employees, and its freedom of contract by obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business?
Set for argument on November 13, 2013 (same day as Harris v. Quinn - it's a labor law doubleheader!).

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