'Obamacare' could be Supreme Court's labor/employment highlight of the year

By Rich Meneghello The Daily Record Newswire After being taken on a turbulent roller-coaster ride by the Supreme Court in the last few sessions, businesses in the Pacific Northwest and across the country are casting a wary eye on Washington D.C. The latest session kicked off last month. But employers can breathe a sigh of relief, at least for now. The Supreme Court has declined to review any blockbuster cases so far this term, and companies may be spared any sweeping changes. However, this reprieve may only be temporary, because the high court could choose to review any number of high-profile cases that have thus far eluded its docket. Short-term forecast: light, mild and easygoing The Supreme Court has thus far accepted review of only five employment cases, and each will have only a limited impact on the state of labor and employment law, with narrow applicability and scope on employers. In fact, the only employers that even need to take notice are: Religious organizations. The "ministerial exception" bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. There is little question about applying this when it comes to pastors, priests, rabbis, etc. But how is the ministerial exception applied to other employees, such as schoolteachers? That is exactly what the Supreme Court will decide in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC -- a case involving a former teacher who taught both secular and religious classes at a religious elementary school. The Equal Employment Opportunity Commission sued the organization after the teacher was terminated, and the Supreme Court will decide whether such claims are valid. Public employers. The other four cases relate to issues impacting government employees. In Coleman v. Maryland Court of Appeals, the Supreme Court will decide whether state employers can face lawsuits for certain Family and Medical Leave Act violations. In Filarsky v. Delia, the court will decide whether a private lawyer retained by the government to conduct a workplace investigation is entitled to the same type of qualified immunity that government employees enjoy. In Elgin v. Department of Treasury, the court will decide whether federal employees terminated for not being registered with the Selective Service have a right to challenge these decisions. And in Knox v. SEIU, it will decide whether a union is required to send a notice to employees if it increases public employee fees mid-year. A perfect storm on the horizon? Storm watchers are bracing for the big one, however: If there is a chance for a dramatic event on this year's Supreme Court docket, it will probably center around health care reform. "Obamacare," in fact, would be the labor/employment highlight of the year. As most people know, various groups have filed lawsuits attacking the constitutionality of the controversial health care legislation. Of all those cases, the one most worthy of tracking is State of Florida et. al. v. U.S. Dept. of Health and Human Services, which has been fast-tracked from the Eleventh Circuit for review at the Supreme Court. Although the court has not officially accepted review of this matter, most legal observers expect that the justices will soon place the case on their current docket. It could be decided by summer 2012, before the next presidential election. As it stands now, employers will need to begin to comply with the Patient Protection and Affordable Care Act in 2014, and the controversial "individual mandate" also will go into effect that same year. The Supreme Court has been asked to decide only the constitutionality of the individual mandate portion of the law, but its review could impact the entire act. It seems like the most likely three outcomes of a possible decision would be the court upholding the entire law; the court striking down the individual mandate portion but permitting the employer portion to go forward; or the court deciding that the individual mandate is such an integral part of the act that the entire law must be stricken. For these reasons, if this case is accepted by the Supreme Court, employers across the country will want to follow it closely. Long-term forecast: unpredictable at best Besides health care, the Supreme Court is deciding whether to accept a number of other cases that would impact the world of labor and employment law. If the past is any indication, the number of cases decided this term will probably increase by at least four or five because around 10 labor/employment cases were on the annual docket each of the last several years. One of the other cases up for consideration is a wage-and-hour battle that would provide clarity to the Fair Labor Standards Act's outside sales exemption; the case would further define the contours of the Age Discrimination in Employment Act. Other possibilities are several public employee cases involving constitutional claims for relief and discrimination claims. ---------- Rich Meneghello, the managing partner of the Portland office of Fisher & Phillips LLP, is dedicated to representing the interests of management. Contact him at 503-205-8044 or rmeneghello@laborlawyers.com. Published: Wed, Nov 9, 2011