Another attack on public sector unions

There's a petition for certiorari pending at the US Supreme Court asking the Court to take up the issue of "Whether it violates the First Amendment to appoint a labor union to represent and speak for public-sector employees who have declined to join the union." Uradnik v. Inter Faculty Organization [Briefs]

Kathleen Uradnik sought a preliminary injunction challenging the constitutionality of an exclusive collective bargaining representative in the public sector, asserting that “the University and State of Minnesota [should] not appoint the Union to speak for her and not force her into an expressive association with it.”

The trial court denied the preliminary injunction, and the 8th Circuit affirmed in December 2018, having decided that Uradnik "cannot show a likelihood of success on the merits of her compelled speech argument."

The Supreme Court may or may not want to hear this case, so we'll just hide and watch.

Is Uber next? US Supreme Court case could be a game changer.

Is Uber next? US Supreme Court case could be a game changer.

Part of a series - Employment Law Case of the Week - by Ross Runkel.

New Prime v. Oliveira (US Supreme Ct 01/15/2019) [PDF] held that an interstate truck driver does not have to arbitrate his wage and hour claim – even though he signed an arbitration agreement.

This could have a big effect on lawsuits between Uber and their drivers. It probably turns on whether the drivers are IN interstate commerce.

Some pundits were surprised that the Court would issue a "pro-worker," "anti-arbitration" decision, failing to understand that the Justices all do their best to be faithful to the words Congress puts into its statutes.

Dominic Oliveira is an interstate truck driver whose contract with New Prime designates him as an independent contractor. The contract contains a mandatory arbitration provision and contains a "delegation clause," giving the arbitrator authority to decide threshold questions of arbitrability. Oliveira filed a class action claiming that New Prime failed to pay statutory minimum wage. The trial court denied New Prime's motion to compel arbitration; the 1st Circuit affirmed. The US Supreme Court affirmed unanimously. New Prime v. Oliveira (US Supreme Ct 01/15/2019) http://case.lawmemo.com/us/Oliveira.pdf

The Federal Arbitration Act (FAA) directs courts to compel arbitration, but §1 says that "nothing" in the Act "shall apply" to "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."

The Supreme Court held that the trial court – not the arbitrator – must first decide whether FAA §1 excludes Oliveira. This is because the contract's delegation clause (which is merely a specialized type of arbitration agreement) can be enforced only if the FAA applies in the first place.

The Supreme Court also held that FAA §1 excludes Oliveira. The FAA's term "contract of employment" refers to any agreement to perform work. At the time of the FAA's adoption in 1925, the phrase "contract of employment" was not a term of art, and dictionaries tended to treat "employment" more or less as a synonym for "work." Contemporaneous legal authorities provide no evidence that a "contract of employment" necessarily signaled a formal employer-employee relationship.

At SCOTUS: Title VII Exhaustion: Jurisdictional? Waivable?

At SCOTUS: Title VII Exhaustion: Jurisdictional? Waivable?

Part of a series - Employment Law Case of the Week - by Ross Runkel.

The US Supreme Court has granted certiorari to decide whether Title VII’s administrative exhaustion requirement is a jurisdictional prerequisite to suit, as three Circuits have held, or a waivable claim processing rule, as eight Circuits have held. Title VII requires plaintiffs to exhaust claims of employment discrimination with the EEOC before filing suit in federal court. Fort Bend County v. Davis (US Supreme Ct cert granted 01/11/2019) [Order].

The 4th, 9th, and 11th Circuits hold that exhaustion is jurisdictional, so courts lack subject matter jurisdiction over claims that were never presented to the EEOC. The 1st, 2nd, 3rd, 5th, 6th, 7th, 10th, and DC Circuits treat failure to exhaust as a claim processing rule that is subject to waiver, forfeiture, and other equitable defenses. The Department of Justice is on record as describing Title VII’s exhaustion requirement as jurisdictional, and the EEOC has taken the position that it is not jurisdictional.

The Court will review the 5th Circuit's judgment in Davis v. Fort Bend County (5th Cir 06/20/2018) [PDF], which held that the defendant forfeited its exhaustion argument by not raising it in a timely manner before the district court.

Justice Kavanaugh’s 1st opinion: Arbitration

Justice Kavanaugh’s 1st opinion: Arbitration.

Part of a series - Employment Law Case of the Week - by Ross Runkel.

The US Supreme Court has held – unanimously – that courts must enforce an arbitration delegation clause even if the merits appear to be "wholly groundless." Henry Schein v. Archer & White (US Supreme Ct 01/08/2019) [PDF]. This is Justice Kavanaugh's first Supreme Court opinion. Eight pages.

[This is not an employment law case, yet it will have an impact on employment agreements that contain an arbitration clause.] Archer & White Sales sued Henry Schein alleging antitrust violations and seeking both money damages and injunctive relief. Schein moved to compel arbitration, citing an arbitration clause in the parties' contract. Archer & White argued that the dispute was not subject to arbitration because its complaint sought injunctive relief, at least in part, and the arbitration agreement had an exception for injunctive relief. Schein contended that because the rules governing the contract provide that arbitrators have the power to resolve arbitrability questions, an arbitrator – not the court – should decide whether the arbitration agreement applied. Lower courts held that the argument in favor of arbitration was "wholly groundless," and so the trial court could – and did – decide that the arbitration agreement did not cover this dispute. The US Supreme Court unanimously reversed.

The US Supreme Court held that the "wholly groundless" exception to arbitrability is inconsistent with the Federal Arbitration Act (FAA) and the Court's precedent. Under the FAA, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. The parties may agree to have an arbitrator decide not only the merits of a particular dispute, but also "gateway" questions of arbitrability. Therefore, when the parties' contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless. "[A] court may not 'rule on the potential merits of the underlying' claim that is assigned by contract to an arbitrator, 'even if it appears to the court to be frivolous.'"