October 4, 2010 marked the beginning of a new term for the United States Supreme Court. But by the time this term is over, the new Justice Elena Kagan may not be the only change that employer's take notice of. Of the cases that have been identified for review so far, the Court has announced that it will be taking up a number of cases that will directly impact employers. There is a strong chance that other employment law cases may be considered in addition to the ones that the Court has already identified. Consequently, by next June, employers might be looking at some significant changes in the way they are dealing with their employees.

It's Back

After some definitive decisions on the issue last term, retaliation is back on the docket for the new term. The Supreme Court will be reviewing both Thompson v. North American Stainless, LP, and Kasten v. Saint Gobain Performance Plastics Corp.

In Thompson, the Court will be deciding if there is such a thing as retaliation for association. In this case, Thompson was fired shortly after his fiancé had filed a charge of discrimination with the EEOC. Thompson claimed that the employer's reason for his termination was in retaliation for the charge filed by his fiancé. The Sixth Circuit Court of Appeals joined the Third, Fifth and Eighth circuits in finding that the language of Title VII does not provide protection for anyone who does not personally engage in a protected activity of opposing a discriminatory practice, making a charge, or assisting or participating in an investigation of a complaint.

In Kasten, the question will be whether an oral complaint rises to the level of being a protected activity under the anti-retaliation provisions of the Fair Labor Standards Act. The lower court held that the language of the FLSA requires that the complaint be made in writing. We will need to see if the Supreme Court says otherwise.

And retaliation is not the only issue making a repeat appearance. The Court will also be revisiting the topic of arbitration. In AT&T Mobility v. Concepcion, the question will be whether the Federal Arbitration Act pre-empts California state law with regard to a contractual provision that waives the right to pursue a class action.

The Cat's Paw

Significant for larger employers in particular, the Court will review Staub v. Proctor Hospital. Staub will deal with the concept that has come to be known as the "cat's paw" theory of liability. The case will determine what an employee must show in order to make a claim of discrimination when the actual decision-maker is not shown to have any particular bias, but the evidence suggests that a lower level official who did have an illegal bias had influence in the decision made. The question for the Court will therefore be when can an employer be held liable for an official with an unlawful intent and who may have caused the employment decision, but did not make the ultimate decision.

Benefits and Other Issues

On another note, the Supreme Court will be deciding under the Employee Retirement Income Security Act the level of harm a participant must show to recover benefits when the language in the summary plan description and the actual plan documents are inconsistent. The court will consider this question in Cigna v. Amara which is currently set for argument on November 30.

In a similar regard, the Court will decide in Mayo Foundation for Medical Education and Research v. United States of America whether the U.S. Treasury Department's exclusion of university students from Social Security taxes also applies to medical residents.

The Supreme Court has further decided to take up the issue of the right to privacy in doing background checks. While NASA v. Nelson involves a constitutionality question involving a federal public employer asking about the applicant's use of illegal drugs, it will likely have an impact on local governments as well as private sector employers. The central issue of the case will decide whether an employee's informational privacy rights were violated when the federal contract employee who posed little security risk was asked to disclose illegal drug use and drug counseling in their employment application, and when made similar inquiries of the references identified by the applicant.

Finally, we all probably knew that the term would not go by without the Court addressing some issue involving the controversial Arizona immigration law. The Court will review Chamber of Commerce of the United States of America v. Whiting, which asks whether the Arizona immigration law authorizing the revocation of an employer's business license if they knowingly hire an illegal immigrant and that further requires employers to use E-Verify is preempted by federal law.

Like a number of past terms, the Supreme Court's docket has the potential of changing things in the work place. With just the cases that are slated for argument between now and the end of 2010, employers may very well be seeing a new day at the office.

Dallas Business Journal