The Supreme Court’s 2013-2014 term opened yesterday. In this term, the Court will hear and decide a number of cases affecting employers, including two key cases focusing on labor-management relations. The labor and employment cases on the Court’s docket for the 2013-2014 term include the following:

• N.L.R.B. v. Noel Canning: This case addresses the validity of President Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) of members Richard Griffin, Terrence Flynn and Sharon Block. The D.C. Circuit held that these appointments were unconstitutional because they did not occur during an intersession recess of the Senate. The issue before the Court is whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions. This case should decide whether the actions and decisions of the NLRB since the date of the appointments, January 3, 2012, will be invalidated. For more information, please see our recent Franczek Radelet alerts on the Court’s decision to accept the case and the recent compromise between the U.S. Senate and President Obama on nominations for the NLRB.
• Harris v. Quinn:  The Supreme Court has long approved collective bargaining agreements that compel non-union members to financially support the costs of collective bargaining representation, as well as other related costs, as long as they are not used to support political candidates or views. In Harris, a group of in-home health care workers, who, by Illinois state law, are considered state employees for purposes of collective bargaining, elected by majority vote to be represented by a union. The resulting collective bargaining agreement with the State covered workers who had not voted for union representation and required all workers to pay a fair share of union dues. A group of workers who opposed union representation brought suit, challenging the requirement that they pay union dues as a violation of their First Amendment rights. Harris may lead the Court to reconsider its prior decisions requiring all covered employees, not just union members, to pay the portion of union dues that support collective bargaining representation.
• Mulhall v. UNITE HERE Local 355: At times, unions and employers enter into neutrality agreements, where the employer promises to remain neutral to union organizing and grants limited access to the employer’s property and employees in exchange for the union’s agreement to forego its rights to picket, boycott or otherwise put pressure on the employer’s business. At issue in this case is whether such an agreement violates Section 302 of the Labor Management Relations Act, 29 U.S.C. Section 186. The Act makes it unlawful for employers “to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value…to any labor organization.” The issue is whether organizing neutrality or assistance provided by the employer to the union is a “thing of value” and so prohibited by the statute. This case may significantly alter the ability of employers and unions to enter into neutrality and card check agreements. For more information, please see our recent Franczek Radelet alert on the Court’s decision to accept the case.
• Sandifer v. U.S. Steel Corp.: The Court will consider what constitutes “changing clothes” under the Fair Labor Standards Act (FLSA). Under §203(o) of the FLSA, an employer need not compensate a worker for time spent changing clothes if that time is excluded from compensable time under a collective bargaining agreement. However, also under the FLSA, an employee must be paid for engaging in a “principal activity,” and putting on and taking off safety gear required by the employer may be a principal activity if it is an integral and indispensable part of the activities for which the worker is employed. In this case, employees at U.S. Steel Corp in Gary, Indiana brought suit under the FLSA claiming that they should be compensated for time spent changing into their work gear and traveling back and forth to the locker room. They argued that what they change into—flame retardant pants and jacket, work boots, hard hat, safety glasses and ear protection—was safety gear, not clothing as contemplated by the FLSA. The Court of Appeals disagreed and denied the claims. This case may clarify when an employer must pay employees for putting on and taking off safety gear at the beginning and end of their shifts.
• Madigan v. Levin: At issue in this case is whether the Age Discrimination in Employment Act (ADEA) precludes state and local government employees from bringing constitutional claims of age discrimination under 42 U.S.C. § 1983. In a departure from the holdings of numerous other courts of appeal, the Seventh Circuit held that such constitutional claims are not precluded. This case will determine whether state employees have a federal damages remedy for age discrimination claims because state immunity under the Eleventh Amendment prevents state employees from recovering damages under the ADEA.
• Schuette v. Coalition to Defend Affirmative Action:  Last term, the Court considered whether the University of Texas’s use of affirmative action in university admissions violated the U.S. Constitution’s Equal Protection Clause. (For more information about the Court’s decision in Fisher v. University of Texas at Austin, please see our most recent Franczek Radelet alert on the case..) In Schuette, the Court will revisit the topic of affirmative action to determine whether a voter-approved ban on the use of affirmative action is constitutional.  The case involves a challenge to Proposal 2, an amendment to the Michigan Constitution approved by voters in 2006, which bans the use of racial preferences in admission decisions for public universities in Michigan. The Sixth Circuit Court of Appeals struck down the ban as a violation of the Equal Protection Clause. In doing so, it created a split among the circuits to have considered this issue:  in 1997 and again in 2012, the Ninth Circuit upheld a similar voter-approved ban on the use of affirmative action by California’s higher education institutions. The Court’s decision on the legality of voter-approved affirmative action bans in this context may affect employer affirmative action and diversity programs, especially for public employers.