Court is (Still) in Session: Updates On Three Key Employment Cases Pending Before the United States Supreme Court

by Orrick - Global Employment Law Group

Back on October 8, 2013, we highlighted three cases currently pending on the United States Supreme Court docket that employers will definitely want to follow. The cases address issues ranging from the proper interpretation of Sarbanes Oxley’s whistleblower provision to the breadth of Presidential NLRB appointment power, to what constitutes “changing clothes” under the FLSA. Although decisions have not yet come down, important developments have taken place in all three cases.

#1 : Lawson v. FMR LLC (Fidelity Investments)

The question before the Supreme Court in Lawson v. FMR LLC is whether an employee of a private contractor or subcontractor hired by a public company is protected from retaliation by the Sarbanes Oxley Act’s (“SOX”) whistleblower provision. Petitioners argue that Section 1514A of SOX protects employees of public companies and their contractors (whether private or publicly held) from retaliation for engaging in a protected activity. Respondents argue that Section 1514A does not protect the employees of private contractors retained by a public company. The Supreme Court heard argument on November 12, 2013.

Oral argument focused on concerns over the scope of the SOX protection: Petitioners’ interpretation of SOX coverage could theoretically reach the domestic employees of officers of a public company—an interpretation that raised concerns with some Justices. Several Justices also raised questions as to the extent to which one-time contractors are protected by Section 1514A, and whether all types of fraud or just fraud related to the work performed by the contractor or subcontractor would be covered by SOX. The Justices pushed Petitioner, Respondent and amici curiae United States to define the limitations of their proposed statutory interpretations, and indicated that their opinion will have to articulate a rule that addresses the limitations of Section 1514A.

Note: Orrick prepared the amicus brief filed by the Securities Industry and Financial Markets Association (SIFMA) in Lawson. To obtain a copy of that brief, or other briefs in the case, contact Mike Delikat.

#2: National Labor Relations Board v. Noel Canning

NLRB v. Noel Canning addresses whether the President’s recess-appointment power (i) may be exercised during a recess within a Senate session or is limited to recesses that occur between Senate sessions; (ii) may be used to fill vacancies that exist during a recess or is limited to vacancies that first arose during that recess; and (iii) may be exercised when the Senate is convening in pro forma sessions.

On December 9, 2013, the Court granted Senate Republican Leader Mitch McConnell’s (and 44 other members of the United States Senate) motion for leave to participate in oral argument as amici curiae in support of Respondent Noel Canning and for divided argument. In granting the motion, the Court expanded the time for oral argument from one-hour to ninety minutes: forty-five minutes for Petitioner NLRB; thirty minutes for Respondent Noel Canning; and fifteen minutes for amici curiae Senate Republican Leader Mitch McConnell. Argument is set for Monday, January 13, 2014.

#3: Sandifer v. United States Steel Corp.

Under Section 203(o) of the Fair Labor Standards Act (“FLSA”), an employer need not compensate employees for time spent “changing clothes” if (i) that time is excluded from working time by express terms of a collective bargaining agreement or (ii) by custom or practice under a collective bargaining agreement. U.S. Steel Corporation workers (Petitioners) argue that the steel workers’ “protective gear” is not “clothing” within the meaning of Section 203(o), so employees must be compensated for time spent donning and doffing this gear. The Supreme Court heard argument on this issue on November 4, 2013.

Oral argument centered around Petitioner’s, Respondent’s and the amici curiae United States’ proposed definitions of clothing. Petitioner advocated for a rule that items designed and worn to protect the wearer against workplace hazards should not be considered “clothes” within the meaning of Section 203(o). A few Justices noted that all clothing has a protective function of some sort, and had difficulty distinguishing workplace hazards from ordinary protection against the “vicissitudes of life.” Respondent U.S. Steel Corp. advocated for a rule that “changing clothes” should include the entire process of donning and doffing a work outfit (including eye gear, hard hats, glasses, ear plugs, etc.). The Justices seemed equally skeptical of this broad rule, and pointed out that such a broad rule is unnecessary where it appears that all of the steel workers’ items fit within the ordinary definition of “clothes.” Amici curiae United States argued that “clothes” should have its ordinary meaning, and therefore should be distinguished from “equipment,” but that regardless, all of the items the steel workers donned fell within the ordinary meaning of “clothes.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Orrick - Global Employment Law Group | Attorney Advertising

Written by:

Orrick - Global Employment Law Group

Orrick - Global Employment Law Group on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.