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Quote of the Day

"Many of life's circumstances are created by three basic choices: the disciplines you choose to keep, the people you choose to be with; and, the laws you choose to obey"
- Charles Millhuff

Supreme Court's Labor-Employment Docket Will Yield Far-Reaching Decisions

(October 9, 2009) After a tumultuous year of hotly contested labor and employment cases, the Supreme Court term that recently began will be quieter – but still will yield several potentially far-reaching decisions that employers should watch for closely.

That is the prediction from Proskauer Rose LLP lawyers Edward Brill and Rebecca Berkebile, after a thorough analysis of cases currently on the Supreme Court docket. Their conclusions are contained in an article originally published in Corporate Counsel.

"Although the labor and employment cases before the Supreme Court this term may not seem to be as riveting as last term's at first glance, the cases may wind up having a considerable impact," wrote Mr. Brill, co-head of Proskauer's Appellate Group and a partner in its Labor and Employment Law Department and Ms. Berkebile, an associate in the Labor and Employment Law Department. "If last term is any indicator, the court will not shy away from delving into the difficult underlying issues."

"Several [labor and employment cases] may potentially have significant impact and even quite far-reaching results."

Mr. Brill and Ms. Berkebile have identified seven cases directly involving or impacting labor and employment law issues -- including one just added to the docket on Sept. 30 that echoes last term's prominent Ricci case involving allegations of racial discrimination in exams for firefighters.

This recent addition to the Supreme Court's docket, Lewis v. City of Chicago, deals with the important question of when the clock starts with respect to discrimination claims: when an allegedly discriminatory policy is enacted, or when that policy has practical effects on employees. The other cases cover topics including the scope of review in ERISA actions, the arbitrability of class claims, and potential limitations on executive compensation. The first of the cases will be heard in the term's first week.

Mr. Brill and Ms. Berkebile also advised that those curious about Sonia Sotomayor's leanings on labor and employment issues will not likely receive any surefire clues:

"For observers and commentators curious about newly appointed Justice Sonia Sotomayor's jurisprudence (many of whom associate the justice principally with her Second Circuit panel decision in Ricci, which was overturned by the Supreme Court last term), the current term fails to provide any obvious 'litmus tests,'" they wrote.

The cases worth watching this term, six of which are discussed in the full article, are:
    - Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers
    - Jones v. Harris Associates
    - Conkright v. Frommert
    - Stolt-Nielsen S.A., et al. v. AnimalFeeds International Corp.
    - Granite Rock Co. v. International Brotherhood of Teamsters
    - Graham County Soil & Water Conservation District v. US ex rel. Wilson
Lewis v. City of Chicago, the Sep. 30 addition to the docket, whose facts resemble those of last term's Ricci, except the city in this case used rather than discarded the results of a test in which white firefighters did disproportionately better than African-Americans. The case raises critical issues on which lower courts have been divided regarding when employees must bring their claims so they are not time-barred.

"As always, the court's actions will be watched closely by labor and employment attorneys," the authors conclude.

For access to the full article in Corporate Counsel, click here.

Proskauer's Appellate Group handles dozens of appeals in federal and state courts every year, including the U.S. Supreme Court. Combining the capabilities of the firm's powerhouse litigation and labor and employment practices, the Appellate Group includes former U.S. Supreme Court clerks, a Deputy Chief of Appeals in the Criminal Division of the U.S. Attorney's Office for the Southern District of New York, the Chief Appellate Attorney in the Southern District's Civil Division and many other lawyers who have argued before appellate panels across the country.

With more than 150 lawyers, Proskauer's management-oriented Labor and Employment Law Department is among the most respected and recognized in the world. It has been described by Chambers USA as "one of the premier employment practices" with a "deep bench" that puts the firm "in a league of its own" with "a number of the sector's best known figures."

About Proskauer Rose
Proskauer Rose, founded in 1875, is an international law firm providing a wide variety of legal services to clients worldwide from offices in Boca Raton, Boston, Chicago, Hong Kong, London, Los Angeles, New Orleans, New York, Newark, Paris, São Paulo and Washington, D.C. The firm, which has wide experience in all areas of practice important to businesses, not-for-profit institutions and individuals, can be found online at www.proskauer.com.

Colleen Gildea

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