We’re watching for three more employment law decisions from the US Supreme Court before they finish their work in June.
Encino Motorcars, LLC v. Navarro
Issue: Whether “service advisors” at car dealerships are exempt under 29 U.S.C. §213(b)(10)(A) from the Fair Labor Standards Act’s overtime-pay requirements. [Opinion below] [Briefs] [Blog] [Casetext] [Blog] Oral argument April 20, 2016. [Transcript] [Audio] [Blog]
The statute exempts from overtime any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” Service advisors aren’t specifically mentioned. The Department of Labor’s regulations have shifted over the years, most recently saying they are non-exempt.
My view of the oral arguments is that nobody on the Court seriously thinks DOL has misread the statute, so under Chevron USA v. Natural Res. Def. Council the Court probably will defer to the DOL’s most recent interpretation and uphold the 9th Circuit’s decision that service advisors are non-exempt. That would be a victory for the plaintiff-employee, and a huge victory for the DOL and other administrative agencies that want to change their formal positions on the meaning of statutes they administer.
Dollar General Corporation v. Mississippi Band of Choctaw Indians
Issue: Whether Indian tribal court has jurisdiction over an intern’s claim that the manager of a store on tribal land sexually molested him while he was working there. [Opinion below] [Briefs] [Blog] Oral argument December 7, 2015. [Transcript] [Audio]
This is a tough case to call because it’s all wrapped up in questions involving Article III, the sovereignty of Indian Tribes, and Congress’s statutes. Personally, I like the idea that anyone who chooses to conduct commercial business on tribal lands should be subject to tribal jurisdiction.
Green v. Brennan
Update on May 23, 2016: The Court ruled [here] that For federal employees, the filing period for a constructive discharge claim begins to run when an employee resigns, not at the time of an employer’s last allegedly discriminatory act giving rise to the resignation.
Issue: Whether, under federal employment discrimination law, the filing period for a constructive discharge claim begins to run when an employee resigns, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation. [Opinion below] [Briefs] [Blog] Oral argument November 30, 2015. [Transcript] [Audio]
Before suing under Title VII, a federal employee “must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” In Green’s case, the last discriminatory act was on December 16, he announced his resignation the following February 9, and contacted an EEO counselor on March 22.
My bet is that the Supreme Court will affirm — by a lopsided margin — and hold that the clock begins to run on the date of the last alleged discriminatory action by the employer, not on the later date when the employee decides to quit or resign. Why? Simple. It is the employer’s conduct, not the employee’s conduct, that constitutes “the matter alleged to be discriminatory.”