What’s On Tap? U.S. Supreme Court’s Upcoming 2012-2013 Term

Contributed by Beverly Alfon

As we rub our bleary eyes during these remaining hazy days of summer, and rejoice in the traditionally emptier courtrooms and longer deadlines of August, we take a moment to peek out at the horizon and the U.S. Supreme Court’s docket for its upcoming term which is set to begin this fall.  A handful of labor and employment cases on the Supreme Court’s docket for the 2012-2013 terms are likely to have a direct on impact employers.

TITLE VII(Vance v. Ball State University, No. 11-556).  The Supreme Court will be reviewing a 7th Circuit decision on an issue that various federal appellate courts are split over:  whether an employer can be held vicariously liable for severe or pervasive workplace harassment by (a) those supervisors who are generally authorized to oversee the victim’s daily work (2nd, 4th and 9th Circuits support liability on this basis); or, (b) only those supervisors who have the specific power to hire, fire, demote, promote, transfer or discipline their victim (1st, 7th and 8th Circuit limit such liability). 

FLSA (Genesis Healthcare Corp. v. Symczyk, No. 11-1059).  The Justices will be reviewing a 3rd Circuit (Philadelphia) decision that considers whether members of a Fair Labor Standards Act class action “die on the vine” when the employer offers to satisfy all of the claims of the lead plaintiff. The focus will likely be whether or not federal courts maintain their jurisdiction over the other members’ FLSA claims when the lead plaintiff’s claims are satisfied through settlement.

CLASS CERTIFICATION(Comcast Corp. v. Behrend, No.11-864). This case is under review from another decision issued by the 3rd Circuit. The court will consider whether a federal trial court can certify a class action without determining whether the plaintiff class has introduced sufficient evidence to demonstrate that the litigation may result in class-wide damages. This one is of particular interest in light of the court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), where the Supreme Court struck down one of the largest potential class actions on the basis that the plaintiffs failed to meet the procedural requirements for class certification.  

ERISA(U.S. Airways v. McCutchen, No. 11-1285).  This case brings to light a decision that the 3rd Circuit issued that conflicts with the 5th, 7th, 8th, 11th and D.C. Circuit Courts.  The focus will be on whether or not ERISA Section 502(a)(3) authorizes courts to use equitable “fairness” principles to rewrite language in employee benefit plans and refuse to compel plan participants to reimburse the plan for benefits even where the original terms give require such reimbursement. 

While we await argument and the court’s decision on these questions, employers should continue to be vigilant about implementing and enforcing policies designed to keep them out of court.  As changes to the law develop, we will keep you posted.