A Quick Glance at Some US Supreme Court Activities Affecting Employment Law

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As no judicial conferences are to be held until January 4 and no oral arguments until January 7, it is an appropriate time to take a quick look at some of the US Supreme Court activities to date affecting employment law and practice.

First, the Court issued a quiet per curiam decision in Nitro-Lift Tech., LLC v, Howard, No 11-1377 (U.S. Nov. 26 2012) regarding employment rights and arbitration. The Court vacated and remanded an Oklahoma Supreme Court decision that it could decide the validity of the noncompetition clause in an employment contract despite the fact that the employment contract contained an arbitration agreement. The US Supreme Court held that the state court must abide by the Federal Arbitration Act (FAA), which is “the supreme Law of the Land” so that questions regarding the validity of the contract and its non-competition clause (as distinct from the validity of the arbitration clause itself) are determined by the arbitrator, not the state court.

Second, the Court heard oral argument in the matter of Vance v. Ball State University, No. 11-556, regarding the definition of a “supervisor” for the purposes of imposing vicarious liability for harassment under Title VII. Does such supervisor liability apply to harassment by those persons with authority to direct and oversee the victim’s daily work, or is it restricted to those harassers who have hire/fire/discipline power over the employee. Certainly an important question, although the Court is struggling with the question of whether the record is developed enough to provide a decision rather than the inappropriate “advisory opinion.” Expect a decision sometime after February 2013.

Third, for our governmental clients, we take note that the Court appears to have held for later decision the issue of whether to grant certiori in City of New York v. Southerland, No. 12-215. The Court is being asked to address the standards for determining whether a social worker is entitled to qualified immunity for investigation of and removal of a child from a parent’s home. We will continue to watch this matter when the Court reconvenes for its next conference in January.

Watch for Karen Kalzer’s comprehensive annual review of Supreme Court decisions affecting claims and litigation in the February 2013 edition of Claims Management Magazine.

About the Authors

Karen Kalzer

Ms. Kalzer practices employment and education law with an emphasis on defending complex litigation for communities of faith, non-profits, schools and private employers.

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