How Justice Scalia's Death Could Have Profound Reverberations for Employers

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The sudden death of Associate Justice Antonin Scalia of the Supreme Court of the United States, who served on the Court for over 30 years, has touched off a heated political debate over the appointment and consideration of his successor, which will perhaps shift the philosophical balance on the Court. Justice Scalia was the leader of the Court's “conservative faction” and was admired by his supporters—including his colleagues on the Court some with whom he frequently disagreed—as a legal scholar, the leading and often tiebreaking conservative voice on the Court, and a social friend off the bench.

Beyond the broader political and social issues, Justice Scalia's death will have an immediate impact for employers on several labor and employment cases currently pending before the Court, as well as on the future of earlier decisions in which his vote would have been a tie-breaker.

Key Pending Labor and Employment Cases

Of immediate concern, for example, is the Court's pending decision in Friedrichs v. California Teachers Association (No. 14-915), which was argued in January of 2016. The issue in Friedrichs is the constitutionality of the compelled payment of “fair share” union dues for non-member public sector employees. The outcome of the case is viewed as posing a significant financial threat to the viability of public sector unions. The Court's decision was widely expected to be 5-4, with Justice Scalia casting the deciding vote against a requirement that non-members who are included as part of a collective bargaining unit pay union dues. With Justice Scalia's death, if the result is a 4-4 tie, as expected, the decision by the Ninth Circuit Court of Appeals upholding the right of public sector unions to demand the “fair share” payment of union dues by nonmembers will be affirmed. However, the tie decision would lack precedential value and would merely be the law of that circuit. An alternative, of course, is to hold over the decision and schedule reconsideration following the confirmation of Justice Scalia's successor.

Another important pending case is United States v. Texas (No. 15-674), which challenges President Obama's deferred action on immigration policy. If the death of Justice Scalia results in a 4-4 tie vote, the Court will uphold the decision of the Fifth Circuit Court of Appeals affirming the federal district court's preliminary injunction preventing implementation of the president's executive action on deferring immigration policy.

Other pending employment law cases before the Court are:

  • CRST Van Expedited, Inc. v. EEOC (No. 14-1375) which involves a challenge to the largest fee sanction award—$4.7 million—ever issued against the U.S. Equal Employment Opportunity Commission (EEOC). The fee award was for the federal agency’s failure to meet its investigatory obligations in prosecuting a systemic lawsuit. Oral argument is scheduled for March of 2016.
  • Spokeo, Inc. v. Robins (No. 13-1339) concerns whether individuals can bring class action lawsuits for a technical violation of the Fair Credit Reporting Act without actual injury.
  • In Green v. Brennan (No. 14-613) the issue is whether the filing period for a constructive discharge claim brought under Title VII of the Civil Rights Act of 1964 begins to run from the date when the employee resigned or when the employer commits the last alleged discriminatory act leading to resignation.

Established Law on Class Actions and Mandatory Arbitration Also at Risk

Beyond currently pending cases, Justice Scalia's death threatens the future viability of the Court's 5-4 majority decisions. Examples of two such decisions authored by Justice Scalia include Wal-Mart Stores, Inc. v. Dukes (2011) and Comcast v. Behrend (2013), both of which were employer-friendly decisions that dramatically changed the rules as to when and how class action lawsuits may proceed.

Another important case is the 5-4 decision in AT&T Mobility LLC v. Concepcion (2011) in which the Court upheld the right of employers to mandate employment arbitration agreements that provide individual treatment of employment law disputes rather than as class or collective actions.


The next Court—without the presence of Justice Scalia—will likely be called upon to consider or reconsider crucial labor and employment law issues. As former Associate Justice Robert H. Jackson (who served on the Court from 1941 to 1954) once wrote about the Supreme Court: “We are not final because we are infallible, but we are infallible because we are final.” In effect, the Supreme Court of the United States is the final “firewall” from actions by the White House, Congress, and regulatory agencies. The Court’s ultimate composition, thus, will have a significant and lasting impact on the shape and tenor of many of our nation’s most pivotal issues for years to come.

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.

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