In the long awaited case of Harris v. City of Santa Monica the California Supreme Court rules as follows:

“When a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time. If the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, backpay, or an order of reinstatement. However, where appropriate, the plaintiff may be entitled to declaratory or injunctive relief. The plaintiff also may be eligible for an award of reasonable attorney‘s fees and costs under section 12965, subdivision (b)….. In light of today’s decision, a jury in a mixed-motive case alleging unlawful termination should be instructed that it must find the employer‘s action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, backpay, or damages.”

The U.S. Supreme Court opened its 2012-2013 term on October 1st. The Court is likely to hear a number of cases with significant implications for employers. Already selected to hear this term are the following key labor and employment cases:

• Vance v. Ball State Univ
• Genesis Health Care Corp. v. Symczyk
• U.S. Airways, Inc. v. McCutcheon
• Comcast Corp. v. Behrend

Please click here to read more about each of these cases and how the outcomes may affect your business.

The Case of Salas v. Sierra Chemical (2011) caused quite a stir because the appellate court dismissed a disability discrimination claim of undocumented alien based on unclean hands. Now the California Supreme Court will decide this far ranging issue. The appellate court essential took much of the teeth out of a legislative amendment to protect illegal aliens against discriminatory and other illegal workplace conduct…regardless of their status. We’ll be keeping an eye out for this one!

Docket
Court of Appeal Opinion

As the United States Supreme Court’s 2009-2010 term drew to a close, commentators remarked on the evolution of the Roberts Court.  Justice Roberts continued to emerge as a key figure this term, as he was a member of the majority 92 percent of the time, more than any other justice.  While his majority percentage may suggest to some a willingness to comprise with his more liberal colleagues on certain issues, he also clearly demonstrated firm convictions on important issues such as campaign finance and gun rights, which yielded some the most highly publicized decisions of the term.  Indeed, the Court’s ruling in the Citizens United case, which invalidated legislation imposing limits on corporate spending in elections, has led some commentators to conclude that the Roberts Court is ushering in era where business interests will reign supreme.
 
This view, however, does not accurately characterize the Court’s labor and employment decisions, which demonstrate a far more even split between employer and employee interests….

To read the entire article, please go to http://www.franczek.com/assets/attachments/Supreme%20Court%2009-10%20Review.pdf.

Article courtesy of Worklaw Network firm Franczek Radelet (www.franczek.com).

On June 17th, 2010, a divided US Supreme Court held that the National Labor Relations Board (NLRB) lacked authority to act when three of its five seats were vacant, a decision with the potential to invalidate more than 600 decisions issued by the NLRB over the past 27 months. The 5-4 decision in New Process Steel, LP v. NLRB is expected to have far reaching implications for employers.

The Two-Member NLRB
The NLRB decides cases arising under the National Labor Relations Act, which governs relations between organized labor and private employers. Normally, the Board is comprised of five Members, but its authorizing statute, 29 USC §153(b), provides that the power to issue decisions may be delegated to a quorum of three Members. In late 2007, the Board was comprised of four Members – Wilma Liebman, Peter Schaumber, Peter Kirsanow and Dennis Walsh. Before Member Walsh’s term expired near the end of 2007, the four Members delegated their powers to Members Liebman, Schaumber and Kirsanow as a three-Member quorum. On December 31, 2007 Member Kirsanow’s term expired, which left only a two-Member Board composed of Chairman Liebman and Member Schaumber.

The remaining two Members took the position that they still retained statutory authority to issue decisions because they represented a two-member quorum of the three-member group to which the Board’s powers had been properly delegated. Further, the remaining two Members also contended that it was in the public’s interest to avoid a shut-down of the Board by allowing the two-Member Board to continue to decide cases.

The Court’s Decision
The Supreme Court disagreed with these arguments. Writing for the majority, Justice Stevens stated that Congress has the power to change the NLRB’s statutory authority and authorize a two-member Board, but “until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect”. The full text of the Court’s decision can be read here.

Impact of the Court’s Decision
According to a June 17, 2010 press release from the NLRB Office of Public Affairs, losing parties have sought Federal Court review of dozens of the two-Member Board’s decisions. Other cases involving the same challenge to the Board’s authority are still pending before the Federal Courts: five are before the Supreme Court, and 69 others are before the lower appellate courts.

The Board expects that these will now be remanded to the current, four-member Board for reconsideration. The Board has not stated, however, what action it will take regarding the decisions issued in cases that were not appealed to the Federal Courts on the grounds that the two-Member Board lacked authority to issue decisions. It remains to be seen whether those decisions will also be subject to reconsideration by a proper quorum of at least three Board Members. Such a process would tie up the Board with old cases for years to come. Employers who may be inclined to celebrate that potential outcome today should temper that by remembering that the now four Member Board has two additional Union-friendly Members appointed by President Obama, so the outcome of any such reconsideration could end with the same, or more onerous, results.

Article courtesy of Worklaw® Network firm Bullard Smith.