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(Reuters) – The U.S. Supreme Court in the coming months will wade into a series of issues with major implications for employers, including a case that could curb class-actions by workers in California and a series of challenges to the Biden administration's COVID-19 vaccine mandates.
Here is a look at five ways the justices could transform the employment law landscape in 2022.
VACCINE MANDATES
Workers and Republican-led states have filed a series of lawsuits challenging state and federal COVID-19 vaccine mandates, and the Supreme Court is slated to hear oral arguments on Jan. 7 in three of these cases.
The Biden administration has required federal contractors, healthcare employers and businesses with 100 or more employees to mandate vaccines or COVID-19 tests for workers, with similar rules adopted by numerous cities and states.
The Supreme Court will hear challenges to the federal rules for the healthcare industry and larger businesses with rulings "likely to follow in short order," according to the court.
Any decisions by the justices would directly impact millions of U.S. workers who object to the vaccine or require religious or medical exemptions, while also setting key precedents on the limits of executive power in pandemics.
The cases are Becerra v. Louisiana, Dr. A v. Hochul, and Does v. Mills, U.S. Supreme Court, Nos. 21A241, 21A145 and 21A90. For the states: Jimmy Faircloth of the Louisiana Department of Justice. For the Biden administration: Solicitor General Elizabeth Prelogar. For the New York plaintiffs: Thomas Brejcha of the Thomas More Society. For New York: Solicitor General Barbara Underwood. For the Maine plaintiffs: Nolan Reichl of Pierce Atwood. For Maine: Kimberly Patwardhan of the Office of the Maine Attorney Genera.
CALIFORNIA ARBITRATION CARVEOUT
The court will likely rule by summer on whether workers in California can circumvent arbitration by filing lawsuits for wage violations on behalf of the state. California's unique Private Attorneys General Act allows plaintiffs to step into the state's shoes and keep 25% of any money they win.
The Supreme Court on Dec. 15 agreed to decide whether workers who sign arbitration agreements can still bring PAGA claims in court, as the state's top court ruled in 2014. Thousands of PAGA cases have been filed in recent years with some yielding multimillion-dollar judgments and settlements. A ruling that the claims can be arbitrated would likely significantly curb employment litigation in California.
The case is Viking River Cruises Inc v. Moriana, U.S. Supreme Court, No. 20-1573. For Viking River: Paul Clement of Kirkland & Ellis. For the plaintiff: Kevin Barnes of Law Offices of Kevin T. Barnes.
RETIREMENT PLAN FEES
The high court is poised to rule early next year on whether employee retirement plans can avoid costly litigation over administrative fees simply by offering workers lower-cost investment options.
Northwestern University has urged the Supreme Court to rule that offering investments with relatively high record-keeping fees alone does not violate the federal law governing employee benefits. A win for the school would mean employers can defeat similar lawsuits early on and cut down on legal costs.
At oral arguments on Dec. 7, the justices seemed to be searching for a middle ground between the high bar for a plaintiff to survive a motion to dismiss set by an appeals court in Northwestern's case and the broader standard pushed by the plaintiffs and the U.S. Department of Justice, according to Audrey Anderson of Bass, Berry & Sims, who represents college and universities. The court's ruling could stem a tide of excessive-fee lawsuits filed in recent years, she said.
The case is Hughes v. Northwestern University, U.S. Supreme Court, No. 19-1401. For the plaintiffs: David Frederick of Kellogg, Hansen, Todd, Figel & Frederick. For Northwestern: Gregory Garre of Latham & Watkins.
AGENCY DEFERENCE
The longstanding principle that courts must defer to federal agencies' reasonable interpretations of ambiguous laws could soon be overruled, which would directly impact challenges to labor and employment policies.
The Supreme Court is considering a challenge to a U.S. Department of Health and Human Services rule that cut drug reimbursements to hospitals. At oral arguments in November, Justices Samuel Alito and Neil Gorsuch suggested that the case could serve as a vehicle to upend "Chevron deference," named for a 1984 case.
If the court takes that step, it could make it easier for businesses and trade groups to challenge future guidance and rules from the U.S. Department of Labor and other agencies that enforce employment laws.
The case is American Hospital Association v. Becerra, U.S. Supreme Court, No. 20-1114. For the AHA: Donald Verrilli of Munger Tolles & Olson. For HHS: Solicitor General Elizabeth Prelogar.
COSTLY QUESTION FOR AIRLINES
The Supreme Court may soon decide whether airlines must comply with wage laws in states where their flight attendants are based, even though they spend most of their working hours in the air.
Virgin America Inc has asked the court to review a 9th U.S. Circuit Court of Appeals decision that said California wage law covers the airline's flight attendants based in the state. A three-judge panel said federal regulations covering airlines did not preempt state laws that apply to workers generally and have only an indirect effect on the prices and services that airlines offer.
The justices in November asked the U.S. Solicitor General to weigh in on the issue, signaling that the court is likely to take up the case.
The case is Virgin America Inc v. Bernstein, U.S. Supreme Court, No. 21-260. For Virgin: Shay Dvoretzky of Skadden, Arps, Slate, Meagher & Flom. For the plaintiffs: Charles Cooper of Cooper & Kirk.
Our Standards: The Thomson Reuters Trust Principles.
Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.
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