SCOTUS adds two new #emplaw cases to docket

The Supreme Court granted certiorari on Friday in two new employment law cases. Of course, we all know what the big one will be next year. But, for the die hards, here are the two new, not-quite-as-hot, topics:

ADEA

First up, Babb v. Wilkie, in which SCOTUSblog describes the issue as:

Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. §633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.

Shades of Gross v. FBL in this one (holding that the private sector provisions require "but for" causation).

ERISA

Second up, and again relying on SCOTUSblog for the issues, is Thole v. U.S. Bank, N.A.:

(1) Whether an ERISA plan participant or beneficiary may seek injunctive relief against fiduciary misconduct under 29 U.S.C. § 1132(a)(3) without demonstrating individual financial loss or the imminent risk thereof; 

(2) whether an ERISA plan participant or beneficiary may seek restoration of plan losses caused by fiduciary breach under 29 U.S.C. § 1132(a)(2) without demonstrating individual financial loss or the imminent risk thereof. CVSG: 05/21/2019; and 

(3) whether petitioners have demonstrated Article III standing.

Wow, ERISA and standing in the same case? Will anyone be able to stay awake past the first two pages of the opinion? We'll find out next term.

Can employers cut employees' hours to avoid Obamacare's employer mandate?

The Obamacare (aka Affordable Care Act) "employer mandate" generally requires large employers to provide full-time employees (30+ hours per week) with affordable health insurance. Can employers cut their employees' hours below that 30 threshold to avoid their obligations under Obamacare?

This sounds like an easy question. Employers have a right to set their employees' schedules and hours, and the employees have no vested, accrued, forward-looking right to health insurance. So, the answer must be "Yes!" of course the employer can cut their hours... right?

Not so fast. In Marin v. Dave & Buster's the Southern District of New York addressed this issue with a surprising (to me) outcome. The employee claimed that her hours were cut so that D&B could avoid the Obamacare employer mandate. She relied on ERISA Section 510, which provides:

Not official use.

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act. 29 U.S.C. § 1140.

The Court provided very little analysis, but concluded:

The critical element is intent of the employer -- proving that the employer specifically intended to interfere with benefits . . . see also Berube v. Great Atl. & Pac. Tea Co., 348 F. App'x 684, 687 (2d Cir. 2009) ("To succeed on a Section 510 claim, a plaintiff must demonstrate the employer specifically intended to interfere with benefits.") . . . .  "Discharging an employee for the purpose of depriving him of continued participation in a company-provided group health plan is a violation of section 510" . . . . Plaintiff has sufficiently and plausibly alleged this element of intent . . . . 

Accordingly, accepting as I must that these factual allegations will be proved, the complaint states a plausible and legally sufficient claim for relief, including, at this stage, Plaintiff's claim for lost wages and salary incidental to the reinstatement of benefits.

(internal citations omitted). Frankly, I'm still skeptical. This is only one district court opinion so this issue is far from resolved; but employers seeking to utilize this strategy should be aware of the risk.

"Own Occupation" Clauses and Interpretation

I cover a broad range of (mostly) employment law topics on this blog - but I don't write many posts on long-term disability (LTD) insurance and benefits. Today, I'm sharing some research on "own occupation" clauses.

The gist of an "own occupation" (sometimes called "regular occupation") clause is that insureds must have an injury, illness, or disease that precludes them from working in their "own occupation" to receive benefits. This is often a point of contention between the insurer and the insured. The insured wants to argue for a very narrow definition of the occupation to be eligible for benefits ("I can't do my specific job, so I'm covered!"). Insurers often try to deny claims on the basis that the insured can still perform different jobs that fall under a giant umbrella of the same occupation ("Look at all of these other jobs you can do that are similar enough to be called the same occupation!").

So, what's the law? Here in the Third Circuit, the courts seem to have taken a fairly insured-friendly approach:

In Lasser v. Reliance Std. Life Ins. Co., 344 F.3d 381 (3d Cir. 2003), an insurer relied on a labor market survey to deny LTD benefits under a regular or own occupation clause. The insured was an orthopedic surgeon whose coronary artery disease rendered him unable to be “on call” or perform emergency surgeries. Although his job required these tasks, the insurer denied his claim by concluding that a generic orthopedic surgeon could practice in the field without being on call or performing emergency surgery. The Court rejected this interpretation. Instead of defining own occupation as “orthopedic surgeon” (as the insurer did), the Court defined the insured’s occupation as “an orthopedic surgeon responsible for emergency surgery and on-call duties in a relatively small practice group and within a reasonable travel distance from his home in New Jersey.” Do you see how narrowly they defined that?

The Court concluded that the insurer’s denial of benefits was “arbitrary and capricious” and the insured was entitled to judgment in his favor. Notably, the Court also recognized the “inherent conflict of interest” when the insurer acts as claims administrator. Thus, courts apply a “heightened” or stricter standard of review to benefits denials.

In Weiss v. Prudential Ins. Co. of Am., 497 F. Supp. 2d 606 (D.N.J. 2007), the district court ruled in favor of the insured, a teacher who fell and injured himself. The insurer denied his LTD benefits claim under a regular occupation clause that read:

Regular occupation means the occupation you are routinely performing when your disability occurs. Prudential will look at your occupation as it is normally performed instead of how the work tasks are performed for a specific employer or at a specific location.

The insurer argued that the insured’s occupation was just “teacher” and that he could work in his own occupation as a “light duty teacher.” The Court was not impressed:

Prudential never explained why it classified Weiss simply as a “teacher,” rather than the somewhat more specific title of “special education teacher,” or the even very specific “special education food services teacher” . . . . In sum, Prudential's decision to deny Weiss LTD benefits was arbitrary and capricious because that decision was based upon an unreasonable interpretation of the term “regular occupation.” In other words, had the Policy more clearly stated that those covered under the Policy were simply “teachers” rather than some more specifically defined teacher, then Prudential's decision that Weiss's injuries did not prevent him from performing the job of a light duty teacher would have been a reasonable decision. But given the more generalized definition in the Policy of the term “regular occupation,” Prudential's interpretation of that term cannot be characterized as reasonable under the heightened arbitrary and capricious review standard.

Obviously, individual cases will require fact-heavy analysis of the "occupation" in question and the specific language of the policy.

SCOTUS on ERISA Limitations Period

Yesterday, the Supreme Court issued its decision in Tibble v. Edison International.

Justice Breyer
Supreme Court Collection
by Steve Petteway

ERISA has a 6-year statute of limitations that runs from “the date of the last action which constitutes a part of the breach or violation” or “in the case of an omission the latest date on which the fiduciary could have cured the breach or violation,” 29 U. S. C. §1113. So, let's say a fiduciary selected mutual fund investments in 1999 - and, similar but cheaper mutual funds were available. Now, let's say beneficiaries file a breach of fiduciary duty claim under ERISA in 2007. Timely?

If you said, "2007 is more than six years after 1999, so NO," then welcome to the 9th Circuit's world. But we're in Justice Breyer's world now (joined by a unanimous Supreme Court):

Under trust law, a trustee has a continuing duty to monitor trust investments and remove imprudent ones. This continuing duty exists separate and apart from the trustee’s duty to exercise prudence in selecting investments at the outset . . . . A plaintiff may allege that a fiduciary breached the duty of prudence by failing to properly monitor investments and remove imprudent ones. In such a case, so long as the alleged breach of the continuing duty occurred within six years of suit, the claim is timely.

The Court declined to express a view regarding the precise scope of this continuing obligation (or decide what kind of review, if any, was required under the circumstances in this case).

3d Cir. on Attorney's Fees Under ERISA

I took last week off from blogging to wrap up my first year of teaching employment law at Penn State. Now I'm back with an exciting new development from the Third Circuit . . . a precedential decision on the standard for awarding attorney's fees under ERISA! Okay, "exciting" might not be exactly the right word here.

On Friday, the Third Circuit decided Templin v. Independence Blue Cross (opinion here). Under ERISA, a party is eligible for attorney's fees if it achieves "some degree of success on the merits." In Templin, the party settled a dispute over interest for $68,000.

The lower court held that the plaintiff had not achieved "some success" because the parties settled their case "without a judgment from the Court" and the $68,000 was "trivial" in comparison to the millions of dollars originally sought.

The Third Circuit applied the "catalyst theory" to determine eligibility. The Court addressed two sub-issues on this point:

[1.]To succeed under a catalyst theory of recovery, evidence that judicial activity encouraged the defendants to settle is not necessary. All that is necessary is that litigation activity pressured a defendant to settle or render to a plaintiff the requested relief . . . .  

[2.] [A] party is eligible for attorney’s fees where his or her litigation efforts resulted in a voluntary, non-trivial, and more than procedural victory that is apparent to the court without the need to conduct a lengthy inquiry into whether that success was substantial or occurred on a central issue.

The Court concluded that the plaintiffs were eligible for attorney's fees in this case. Judicial activity was not required, and the $68,000 - while relatively small - was still a non-trivial and more than procedural victory.

However, whether they actually get attorney's fees depends on the lower court's discretion, applying the five Ursic factors. The Third Circuit described those factors, and reversed and remanded the case back to the trial court to apply them.

SCOTUS Grants Cert in ERISA Case

Yesterday, the Supreme Court granted certiorari in Montanile v. Bd. of Trustees of the National Elevator Industry Health Benefit Plan. Per the Petition, the Court will resolve a circuit split on the following question:

Does a lawsuit by an ERISA fiduciary against a participant to recover an alleged overpayment by the plan seek “equitable relief” within the meaning of ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3), if the fiduciary has not identified a particular fund that is in the participant’s possession and control at the time the fiduciary asserts its claim?

I'm gonna go ahead and guess this case will not make for good dinner party conversation.

SCOTUS Kills Yard-Man

When you were growing up, did you ever have a teacher return an assignment and tell you everything you did wrong... but not give you the right answer? Instead, you were just supposed to try again and figure it out for yourself? That's pretty much what Justice Thomas just did to the 6th Circuit.

On Monday, the Supreme Court issued its opinion in M&G Polymers USA LLC v. Tackett. Sometimes, employers and unions enter into collective bargaining agreements (CBAs) that provide health care benefits for retirees. The CBA usually has a set lifespan (three years is common). The issue here is whether the retiree health care benefits continue only until the CBA dies, or until the retirees die. Put another, did the CBA create a vested right to a lifetime of health care benefits?

Justice Thomas,
official portrait public domain.

Of course, the parties could have just specified the answer in the CBA - but what fun would that be? The Sixth Circuit, through a series of cases (Yard-Man and its progeny) created a presumption in favor of the retiree benefits vesting (and therefore continuing indefinitely) if a CBA was silent on the issue. Cue Justice Thomas for a unanimous court:

As an initial matter, Yard-Man violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements. That rule has no basis in ordinary principles of contract law.

In other words, "You know that Yard-Man presumption you've been applying? STOP IT!" But the Court never actually gives us the answer (i.e. whether the benefits vested or not in this case).

Justice Thomas just tells the lower courts to apply "ordinary contract principles," and then reminds us of some of them. For example, "the traditional principle that courts should not construe ambiguous writings to create lifetime promises" and "the traditional principle that 'contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.'"

Justice Ginsburg (joined by the rest of the liberal bloc) wrote a concurring opinion, noting some other principles. Like, "[C]onstraints upon the employer after the expiration date of a collective-bargaining agreement . . . may arise [from] implied terms of the expired agreement." And, if the CBA is ambiguous, the Court "may turn to extrinsic evidence—for example, the parties’ bargaining history" to determine if the parties intended the health benefits to vest.

Now go back and try again, 6th Circuit, and remember what Justice Thomas told you.

SCOTUS on ERISA Plan Limitations Provisions

The Supreme Court just unleashed its unanimous opinion in Heimeshoff v. Hartford Life and Accident Ins. Co. Justice Thomas did a nice job of succinctly stating the gist of the case in plain English:

A participant in an employee benefit plan covered by the Employee Retirement Income Security Act of 1974(ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq., may bring a civil action under §502(a)(1)(B) to re- cover benefits due under the terms of the plan. 29 U. S. C. §1132(a)(1)(B). Courts have generally required participants to exhaust the plan’s administrative remedies before filing suit to recover benefits. ERISA does not, however, specify a statute of limitations for filing suit under §502(a)(1)(B). Filling that gap, the plan at issue here requires participants to bring suit within three years after“proof of loss” is due. Because proof of loss is due before a plan’s administrative process can be completed, the administrative exhaustion requirement will, in practice, shorten the contractual limitations period. The question presented is whether the contractual limitations provision is enforceable. We hold that it is.

Is there anything to prevent a dastardly plan-provider from adopting a limitations provision that effectively cuts off all claims? Well yes, there is. The limitations provision must be "reasonable."

What does "reasonable" mean? We're not exactly sure. But in this case, Justice Thomas noted that the provision would give the employee on-average two years from the conclusion of the administrative review process to file suit. In this case, the employee actually had only one-year from the conclusion of the process. The Court concluded that the one year was still reasonable.

So, what would be unreasonable? We don't know for sure. Justice Thomas notes prior precedent, Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355 (1977), in which the Court held that 12-month state statutes of limitations for filing Title VII claims were unreasonable given an EEOC backlog of 18-24 months. So, we can probably assume that a limitations provision in a benefits plan that expired before the required administrative review was even completed would be unreasonable. Numerous courts have addressed the reasonableness of contractual alterations of statutes of limitations in other contexts, so there's some guidance out there.

What if a plan includes a "reasonable" limitations period but a dastardly administrator stalls to run out the clock? Justice Thomas notes that traditional doctrines apply and that courts may apply equitable tolling in such circumstances.

For plaintiffs' attorneys this means getting a copy of the plan and checking for limitations provisions immediately. I suspect plan administrators will check their existing plans for limitations provisions and adding them or altering them based on today's decision (and including them in future plans).

Image: The image is Justice Thomas' official portrait and is in the public domain as a work of the federal government.

New Jersey Recognizes Same Sex Marriages - Why it Matters for Pennsylvania Employers

On Monday, New Jersey became the fourteenth state to allow same sex marriages.A trial court ordered that such marriages would begin on Monday. Governor Christie appealed to the state Supreme Court, but after a an adverse preliminary ruling he saw the writing on the wall. He withdrew his appeal.

Why does this matter to Pennsylvania employers? Well, if a Pennsylvania employer has an employee who lives in New Jersey and has a same sex spouse, then he or she may qualify for FMLA leave to care for that spouse. If a same sex couple gets married in New Jersey, then they are treated as married for federal tax purposes regardless of where they live. Such couples are also recognized as "spouses" under the Department of Labor's guidance on ERISA (addressing benefits plans).

Welcome to the post-Windsor world! Employers must keep tabs on what other states are doing with same sex marriages to properly handle taxes, benefits, FMLA leave, and a host of other federal law issues.

SCOTUS 2013-14 Employment Law Preview

Slim employment law pickings at the Supreme Court this term (at least among cases granted thus far). As a reminder, I broke labor law into a separate preview this year. Let's check out the docket:

Age Discrimination Claims Under the Constitution
In Madigan v. Levin, the Court will hopefully decide:

Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.

In other words, can public employees skip all that administrative stuff under the ADEA, like filing a charge with the EEOC, and just go straight to court with a claim under the Equal Protection Clause? And I say "hopefully" the Court will decide the issue because there are significant procedural hurdles, and early reports from oral arguments suggest the case might get DIG'd (or otherwise decided without resolving the big question).

ERISA Statute of Limitations
In Heimeshoff v. Hartford Life and Accident Ins. Co., the Supreme Court granted certiorari on one specific question: "When should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit determination?" Oral argument is set for October 15, 2013.

SOx Retaliation
In Lawson v. FMR LLC, the Supreme Court will likely determine:

Is an employee of a privately-held contractor or subcontractor of a public company protected from retaliation by section 1514A (of the Sarbanes-Oxley Act)?

Argument on November 12, 2013.

Employment Law-ish
And then there are the cases that are kinda sorta employment law-ish. Like, U.S. v. Quality Stores, Inc. (Whether severance payments made to employees whose employment was involuntarily terminated are taxable under the Federal Insurance Contributions Act, 26 U.S.C. 3101 et seq.) and an obligatory arbitration case, BG Group PLC v. Republic of Argentina (In disputes involving a multi-staged dispute resolution process, does a court or instead the arbitrator determine whether a precondition to arbitration has been satisfied?).

So, to recap - an age discrimination case that will only impact public employees that probably won't even be resolved by the Court; an ERISA statute of limitations case; a SOx case applicable only to (sub)contractors of certain public companies; a FICA case; and an arbitration question. I'm having trouble getting pumped up for this term. There's some chance SCOTUS will grant cert on an interesting pregnancy accommodation issue though so cross your fingers!

DOL Issues Guidance on ERISA and Same-Sex Marriages

Last week, the Department of Labor (DOL) issued post-Windsor (Supreme Court case striking down parts of DOMA) guidance on ERISA and same-sex marriages.

Per the DOL press release:

[I]n general, the terms "spouse" and "marriage" in Title I of ERISA and in related department regulations should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live.

You can find a more-detailed explanation in the DOL's Technical Release No. 2013-04, including the clarification that:

The terms "spouse" and "marriage," however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law. The foregoing sentence applies to individuals who are in these relationships with an individual of the opposite sex or same sex.

This guidance is very similar to the IRS rule addressing federal taxes post-Windsor. This guidance is different, however, from the DOL's guidance on the Family & Medical Leave Act (FMLA), which defines spouse based on where the employee resides.

I'm coming to grips with the notion that a post-Windsor world requires lawyers to track a patchwork of federal rules, regulations, and guidance that may differ from statute to statute. I'm doing my best to keep up, but it should keep us employment lawyers busy for awhile!

Image: DOL Seal - Not official use.

ERISA Decision Post-Supreme Court DOMA Decision - COTW #154

A Monday Case of the Week!? Yeah, I spoke at an employment law seminar for the folks at Healthcare Human Resources Association in Altoona, PA on Friday. So, the Case of the Week was delayed until today.

One of the topics we discussed was the impact of the Supreme Court's ruling in U.S. v. Windsor, striking down portions of DOMA, on Pennsylvania employers. As luck would have it, we got a great illustration earlier in the week from the Eastern District of Pennsylvania in Cozen O'Connor v. Tobits (opinion here via c2essentials).

The case provides a great illustration of how complicated things can get in this post-Windsor world. The case involved a woman who participated in a Pennsylvania law firm's plan that provided for a survivorship annuity to her beneficiary upon her death. Sadly, she passed away. The issue was whether she has a "spouse," who would be the default beneficiary (if not, the survivor benefits go to her parents). Whether ERISA recognized her same-sex partner as her spouse should give us our winner.

Well, you say, Pennsylvania does not recognize same-sex marriages so the parents must win, right? Not so fast! She was married to a woman in Canada, which does recognize the marriage. But wait, Pennsylvania does not have to recognize that marriage. Well sure, but she and her wife were domiciled in Illinois, so we should look to their laws (at this point, the seminar attendees and I had a good chuckle - Pennsylvania employers deciding beneficiaries based on whether Illinois recognizes Canadian same-sex marriages . . . it's all so simple, right?). Just when you think it can't get any more convoluted, we get one more curve ball: Illinois recognizes the Canadian same sex marriage as a "civil union."

Frankly, the Court's legal analysis was a little thin, dispatching this case in a mere 12 pages. Suffice it to say that the Court concluded the same-sex partner was a spouse under ERISA based on Illinois' recognition of the marriage. DOMA defined "spouse" for over 1,000 federa

l statutes - so expect a lot more cases like this as we wade through these issues.

SCOTUS, ERISA, and Equitable Rules - COTW #139

Earlier this week, the Supreme Court released its opinion in U.S. Airways v. McCutchen. Before we get to the holding, it's important to understand the background:

- Employee is involved in a bad car accident
- Employee has ERISA health plan that pays for $65,000 in damages
- Employee files lawsuit and settles it for $100,000
- Employee's lawyer takes a 40% contingent fee of $40,000
- Plan has a reimbursement clause and demands that the employee, who just settled for $100,000, use $65,000 of that to reimburse the plan*

The problem? The employee will be at -$5,000 ($100,000 settlement; minus $40,000 attorney's fees; minus $65,000 reimbusement) despite having a health plan that supposedly covers his damages and getting a favorable settlement of $100,000. This seems unfair.

The issue? Can courts use "equitable principles" to override the contracts reimbursement clause? For example, the employee argues unjust enrichment - that the plan received the benefit of the employee paying $40,000 to the attorney without incurring any costs. Can the Court make the plan share in the attorney's fees?

The holding? It's unanimous! The entire court agrees that equitable principles can not override the express terms of the plan, which is a binding contract construed under ERISA. Even though it may be unfair, the Court can not just override the plan's terms.

Well, another case is in the books . . . wait . . . what? There's more!? Justice Kagan (plus the rest of the liberal bloc and Kennedy, J.) goes on to address another issue. She notes that "[t]he plan is silent on the allocation of attorney’s fees" (that sound you hear is plan-writers everywhere screaming "the plan doesn't say anything about attorney's fees because it doesn't pay for any attorney's fees!!!"). The Court deems this a "gap" in the contract.

Per the majority, the Court can fill in gaps in the plan. So, Justice Kagan fills in the "gap" with the common fund doctrine ("a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole."). So, the employee wins after all - despite unanimously losing on the issue actually before the Court.

Justice Scalia (joined by the conservative bloc) penned a short two-page dissent calling out Justice Kagan for answering a question that wasn't asked:

[W]e granted certiorari on a question that presumed the contract’s terms were unambiguous—namely, “where the plan’s terms give it an absolute right to full reimbursement.” Pet. for Cert. i . . . . In their brief in opposition to the petition they conceded that, under the contract, “a beneficiary is required to reimburse the Plan for any amounts it has paid out of any monies the beneficiary recovers from a third-party, without any contribution to attorney’s fees and expenses.” Brief in Opposition 5 (emphasis added). All the parties, as well as the Solicitor General, have treated that concession as valid . . . . The Court thus has no business deploying against petitioner an argument that was neither preserved . . . nor fairly included within the question presented.

Thus, Scalia and the dissenters would have stopped after deciding that equitable principles can not override the terms of the plan, and not searched for gaps to fill with the Court-preferred common fund clause.

That sound you hear now? Plan-writers furiosuly drafting clauses expressly addressing attorney's fees in their reimbursement clauses.

* To keep it simple to follow, I changed some of the numbers and left out some details (for example, some recovery came from another motorist and some from an insurer).

SCOTUS Grants Cert. in ERISA Statute of Limitations Case

Earlier today, the Supreme Court granted certiorari in Heimeshoff v. Hartford Life Insurance. Per the Court's Order, SCOTUS will only hear question one. Per the Court's Questions Presented, question one is:

When should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit determination?

The case is on appeal from the Second Circuit, 496 F. App'x 129, which enforced a contractual agreement to shorten the statute of limitations to three years for a claim brought under ERISA where the normal state contract statute of limitations was six years. The contract further provided that the limitations period began to run when the employee's proof of loss was due, not upon the final denial of request for benefits.

As you can see, the Court has a few different directions it could go in here. SCOTUSblog hasn't posted a copy of the Petition for Writ of Certiorari yet (and I haven't located it anywhere else), so I'm not sure what angle the parties are pressing yet. It will also be interesting to see what impact (if any) the Court's decision will have on contractual agreements to alter limitations periods in other contexts.

VIDEO: Recap of SCOTUS Oral Arguments in ERISA Case

On Tuesday, the Supreme Court heard oral arguments in U.S. Airways v. McCutchen - SCOTUSblog case page here; my previous coverage here. You can read the full transcript from oral arguments here. And now, for something completely different . . . the first ever Lawffice Space videocast with my recap (feedback welcome):



If the embedded video player does not appear, click here to view online.

2012 SCOTUS Employment Law Preview!

It's here! The new SCOTUS season kicks off today! Let's see what kind of employment law goodies the Court has in store for us (in order of my personal preference):

Supervisor Liability
In Vance v. Ball State University, the Supreme Court will determine who counts as a supervisor in harassment cases. Question presented:

Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

You can read my previous coverage here, or check out SCOTUSblog's coverage here.

FLSA "Pick Off" Case
Straight from my home circuit (that's the Third Circuit), the Supreme Court will address whether a defendant may "pick off" the sole plaintiff in a potential FLSA collective action, effectively killing the case. Question presented:

Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff ’s claims.

You can read my analysis of the Third Circuit opinion here, and the grant of cert. here, and SCOTUSblog's coverage here. I love it when the Supremes agree to hear an old Case of the Week!

ERISA
Another one from the Third Circuit, the Supreme Court will delve into the dry dry world of ERISA statutory interpretation in U.S. Airways, Inc. v. McCutchen. Question presented:

Whether the Third Circuit correctly held—in conflict with the Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits—that ERISA Section 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement.

Read my previous coverage here, or SCOTUSblog's coverage here.

Miscellaneous
There are a few more cases that have some employment law-ish overtones, or focus on narrow issues. For example, Comcast v. Behrend (SCOTUSblog) will address the evidentiary burden for class certification at a district court (not an employment law class action in this case, but could still have some ramifications). The Court will address a jurisdictional issue for mixed cases (disputed termination and unlawful discrimination) involving federal employees in Kloeckner v. Solis (SCOTUSblog). Finally, the Court will analyze the use of race in university undergraduate admissions in Fisher v. University of Texas at Austin (SCOTUSblog) (not technically employment law, but you never know how issues involving race discrimination and the Equal Protection Clause may creep into subsequent employment law analysis).

I'll be on the lookout for more employment law cases as the Supreme Court grants petitions for certiorari. Also, note that the Supreme Court will now be issuing opinions and orders at 9:30 instead of 10:00.

Attorney's Fees in ERISA - "Some Success on the Merits"

On Monday, the Supreme Court issued two employment law decisions. Of course, readers of this blog already know about the Court's disparate impact statute of limitations decision in Lewis v. City of Chicago. In a second case, Hardt v. Reliance Standard Life Ins. Co., the Court addressed when attorney's fees are available to an ERISA claimant.

"In most lawsuits seeking relief under the Employee Retirement Income Security Act of 1974 (ERISA) . . . 'a reasonable attorney's fee and costs' are available 'to either party' at the court's 'discretion.' §1132(g)(1)." The Supreme Court held "that a fee claimant need not be a 'prevailing party' to be eligible for an attorney’s fees award under §1132(g)(1)." So, under what circumstances may a court award attorney's fees? Where "the court can fairly call the outcome of the litigation some success on the merits."

Fans of canons of statutory construction/interpretation will note that the Supreme Court dusted off an oldie but goodie: "Congress knows how to." The Court noted a separate provision that stated attorney's fees are available only when plaintiffs obtain "judgment in favor of the plan." The Court then explained, "Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases."

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