Commentary

Home > Commentary (Page 16)

Posted 11 Jun 2015 in Case Notes, Commentary
Tyson Foods v. Bouaphakeo presents a classic legal dilemma:  two lines of cases, one older and one newer, neither exactly on point.  Which will the Court pick or will it craft a new test? More pragmatically, local governments will be interested in this case because it involves the Fair Labor Standards Act (FLSA). Given the difficulties of complying with this complex law, no employer is immune from the possibility of FLSA litigation. One of two questions the Supreme Court will decide in Tyson Foods v. Bouaphakeo is whether a representative sample may be used calculate liability and damages for an entire class of workers. The other question is whether a class may include hundreds of members who weren’t affected.

Posted 10 Jun 2015 in Case Notes, Commentary
While the Supreme Court’s recent grant of certiorari in Evenwel v. Abbott asks one of the biggest questions about redistricting (who exactly is counted to determine one-person-one-vote), the question the Supreme Court will decide in Shapiro v. Mack is much more modest. Federal law (the Three-Judge Act) requires three-judge panels to decide constitutional challenges to congressional and legislative redistricting. But the single judge to whom the request for a three-judge panel is made may determine that three judges are not required to decide the case.  

Posted 03 Jun 2015 in Case Notes, Commentary
We didn’t learn much in Taylor v. Barkes. But we could have. Prison officials asked the Supreme Court to resolve a circuit split over whether supervisors can be liable for constitutional violations caused by their failure to supervise. Instead of requesting and holding oral argument before deciding the case, the Court summarily reversed the lower court in a per curiam (unauthored) opinion.  The Court “expess[ed] no view” on the vitality of supervisory liability instead concluding no clearly established constitutional right was implicated in this case. The Court granted two prison officials qualified immunity related to an inmate’s suicide reasoning that no precedent at the time of the suicide established that an incarcerated person had a right to proper implementation of adequate suicide prevention protocols. So prison officials could not be liable for failing to supervise the contractor providing suicide screening.

Posted 01 Jun 2015 in Case Notes, Commentary
The Supreme Court’s final employment case of the term is a loss for all employers—not just clothing retailers that impose their fashion sense on their employees. As Justice Thomas points out in his dissenting opinion, rather remarkably, it leaves open the possibility that an employer can be liable for intentional discrimination for failing to accommodate a practice it did not know or even suspect was religious. In EEOC v. Abercrombie & Fitch Stores the Supreme Court held 8-1 that to bring a religious accommodation claim an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision. The State and Local Legal Center (SLLC) filed an amicus brief, which IMLA attorneys wrote, arguing that to bring a failure to accommodate claim the applicant/employee should have to notify the employer of the need for a religious accommodation.

Posted 28 May 2015 in Case Notes, Commentary
The U.S. Constitution Equal Protection Clause’s “one-person one-vote” principle requires that voting districts have roughly the same population so that votes in each district count equally. But what population is relevant—total population or total voting population—and who gets to decide? The Supreme Court will decide these issues in Evenwel v. Abbott. While this case involves a state legislature redistricting it is equally applicable to a local government drawing boundaries for a local election. While local governments may prefer to decide for themselves (rather than have the Supreme Court tell them) what population metric is appropriate, they may disagree about the better metric.

Posted 26 May 2015 in Case Notes, Commentary
The Employee Retirement Income Security Act (ERISA) regulates private employer retirement plans and does not apply to state and local government retirement plans. Tibble v. Edison International is an ERISA case. Before you dismiss it, note that it is an ERISA fiduciary duty case. A lower court determining the precise nature of the fiduciary duty state and local governments owe employees under a state law similar to ERISA regulating public retirement plans may look to the Supreme Court’s opinion in this case. The Court held unanimously that employers have a continuing duty to monitor retirement investments and remove imprudent ones.  

Posted 14 May 2015 in Commentary
To bring a lawsuit in federal court a plaintiff must have “standing” per Article III of the U.S. Constitution. An undisputed element of standing is that the plaintiff has suffered an injury. But what if Congress allows plaintiffs who have suffered no concrete harm to sue based upon a mere violation of statute? The Supreme Court will decide whether such plaintiffs have Article III standing in Spokeo v. Robins. While the impact of this case on state and local governments may not be obvious, there are a finite number of statutes in which Congress has created a private right of action and a plaintiff may be unharmed by a violation of the statute. Most are consumer protection statutes like the Truth in Lending Act and the Telephone Consumer Protection Act, which don’t apply to state and local governments. But a few such statutes do apply—the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Driver’s Privacy Protection Act (DPPA).

Posted 13 May 2015 in Commentary
As our country prepares for the upcoming brown out and black out season, the Supreme Court has accepted a case involving our nation’s electricity grid. Local governments who participate in demand response programs have a direct stake in the outcome of this case. The Supreme Court has agreed to decide whether FERC may regulate “demand response” payments offered to electric utility customers to reduce their electricity use during periods of high demand. State and local governments may save money through participating in demand response programs. But the Electric Power Supply Association argued, and the D.C. Circuit Court of Appeals agreed, that FERC’s Order 745 encroaches on states’ regulatory authority.

Posted 12 May 2015 in Commentary
If not all Supreme Court cases are equal, all employment law Supreme Court really cases aren’t equal. Green v. Donahoe isn’t Ledbetter v. Goodyear, holding employees have 180 days from a discriminatory pay decision to bring a claim, which Congress promptly overturned. Most employers won’t care how this case is decided. So, why did the Court take it? Likely to resolve a circuit split that has been brewing for the last 25 years. In Green v. Donahoe the Supreme Court will decide for purposes of federal employment discrimination law when the filing period for a constructive discharge claim begins to run. The Court’s choices are:  when an employee resigns or the employer's last allegedly discriminatory act. Often these two events occur at the same time, but not in this case. This case will apply to constructive discharge claims brought against state and local government employers under Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, all of which must first be brought to the attention of the EEOC before a court. 

Posted 28 Apr 2015 in Case Notes, Commentary
Justice Kennedy has a lot to think about over the next two months when it comes to same-sex marriage. His first question (third of the argument) raised an issue that was discussed throughout Mary Bonauto’s argument in favor of a constitutional right to same-sex marriage:  for millennia (not years, decades, or even centuries) marriage has been between a man and a women. Then Justice Breyer, ever the pragmatist, asked why states can’t just wait and see whether same-sex is harmful to traditional marriage. And should just nine people be deciding this question anyway?