Skip to content

Tag: Department of Homeland Security v. Regents of the University of California

2019-2020 Supreme Court Labor and Employment Cases

Image of a gavel to represent the Supreme Court's labor and employment decision from this term.
Photo by Tingey Injury Law Firm on Unsplash

This is one of the most impactful years that the Supreme Court has had on labor and employment law. The Court took on a number of important and controversial issues including gender identity and sexual orientation discrimination, the DACA program, the standard that must be met for proving age discrimination under the Age Discrimination in Employment Act and race discrimination under Section 1981, whether the ministerial exception applies to teachers at religious schools, and whether the government properly exempted religious institutions from the contraception mandate under the Affordable Health Care Act (Obamacare). The impacts and the follow-up cases clarifying the decisions from this term will continue to be felt for years, especially in the context of issues involving sexual orientation and gender identity discrimination.

Bostock v. Clayton County (Consolidated with Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission)

This was by far the biggest case to come out of the Supreme Court in employment law in years. The Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination against individuals based on their gender identity (transgender discrimination) and their sexual orientation. Essentially, employers cannot discriminate against employees on the basis of their sex, which includes gender identity and sexual orientation. Employers should update their handbooks to ensure that discrimination against individuals on the basis of sexual orientation and gender identity is prohibited. Employers should also retrain managers to ensure that employees do not suffer these types of prohibited discrimination. As a reminder, a number of states have their own laws on sexual orientation and gender identity discrimination. This ruling will not affect those state laws. Anyone with questions should first check the laws of their state to determine the best approach to resolving sexual orientation and gender identity discrimination issues.

Justice Alito’s dissent outlined the most controversial issues that will be decided by future cases (these are described below in each subheading). The biggest questions that remain from the case involve the interaction between the law’s prohibition against gender identity and sexual orientation discrimination and its protection of religious liberty.

“[B]athrooms, locker rooms, [and other things] of [that] kind”

When will an employee that is transitioning be permitted (or required) to use the locker room or bathroom associated with their gender identity? How does this right interact with the rights of other employees that may not feel comfortable sharing a bathroom or a locker room with an employee who has not had gender reassignment surgery? Courts will help resolve this issue. Many states have their own statutes (and subsequent cases) clarifying these protections. It remains to be seen how the rights will be protected/interpreted under Title VII, but one should expect the law to settle along similar lines as those in the various states (i.e. it is likely that employees will have the right to use the locker room or bathroom associated with their gender identity at some point in the future).

Women’s Sports

Whether transgender athletes can or are required to participate in the team that is in line with their gender identity. This is not an employment issue (except for paid female athletes), but it is a question that will need to be resolved based on the ruling. Many states are examining this question for sports including most recently Idaho. It is an issue that will likely continue to be litigated.

Healthcare

There are likely to be lawsuits by transgender employees that have employer sponsored health plans that do not cover the cost of gender reassignment surgery. Many of these plans will likely start to cover the surgery due to social pressure anyway, but it is an issue that still needs to be resolved.

Freedom of Speech

Employees don’t have “freedom of speech” in the workplace. Companies can fire employees for what they say as long as the firing would not be for an unlawful reason (speech that is protected under the National Labor Relations Act, whistleblowing protections of various statutes, or protected by another law). For example, a company could and should fire someone for making a death threat against another employee. A company cannot fire someone because they say that the company needs a union.

The dissent in the Bostock case stated that “the Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.” The interaction of the decision with issues of religion and the protections that individuals have to practice their religion will undoubtedly be the most interesting.

Babb v. Wilkie

The Supreme Court ruled that under the ADEA (Age Discrimination in Employment Act) a plaintiff only needs to prove that age is a motivating factor in an employment decision for there to be a violation of the ADEA. However, but-for causation (but for their age the employee would not have suffered the adverse employment action) is important to determining the appropriate remedy for a violation of the ADEA. For example, a plaintiff cannot obtain some forms of relief, like hiring, reinstatement, backpay, and compensatory damages without a showing of but for causation. Plaintiffs could get injunctive or other forward-looking relief if they cannot show that age was a but-for cause of the employment decision but merely a motivating factor.

The decision will make it easier for plaintiffs to obtain relief under the ADEA as some forms of relief may be available even if they cannot meet the but-for causation standard. 

Comcast Corp. v. National Association of African American-Owned Media

The Supreme Court unanimously ruled that under 42 U.S.C. § 1981 a plaintiff must show that race was the but-for cause of the plaintiff’s injury rather than  a mere motivating factor (one factor among others that lead to the adverse employment action).

The case will make it easier for companies to defend against Section1981 claims, but employees that cannot meet the but for causation standard may be able to meet the motivating factor standard under Title VII and choose to file a charge with the EEOC or their respective state agency.

Department of Homeland Security v. Regents of the University of California

While this is not strictly an employment law case, it will have a big impact on employment.

As I said in a prior post, “DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program.”

In this case, the Supreme Court ruled that the Trump administration’s order to undo the Deferred Action for Childhood Arrivals was arbitrary and capricious (the administration did not conduct a thorough review of all the relevant factors that it should have  taken into account such as any “legitimate reliance” that individuals had on the DACA memo, whether the government could have eliminated eligibility while continuing forbearance, and giving consideration to other policy alternatives). Instead, the Trump administration relied only on the illegality of providing the benefit by the prior administration as its reason for ending it.

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

This is one of the three major religious liberty cases that were before the Supreme Court this year. It may provide some insight into how the Court will view religious liberty issues in the future within an employment context, especially how they relate to sexual orientation and gender identity discrimination.

In a 7-2 decision, the Court concluded that:

As we have explained, RFRA [(Religious Freedom Restoration Act)] “provide[s] very broad protection for religious liberty.” Hobby Lobby, 573 U. S., at 693. In RFRA’s congressional findings, Congress stated that “governments should not substantially burden religious exercise,” a right described by RFRA as “unalienable.” 42 U. S. C. §§2000bb(a)(1), (3). To protect this right, Congress provided that the “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it demonstrates that application of the burden . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.” §§2000bb–1(a)–(b). Placing Congress’ intent beyond dispute, RFRA specifies that it “applies to all Federal law, and the implementation of that law, whether statutory or otherwise.” §2000bb–3(a). RFRA also permits Congress to exclude statutes from RFRA’s protections. §2000bb–3(b).

The essence of the decision is that the government acted lawfully to expand the contraception exemption for employers like the Little Sisters of the Poor. Justices Alito and Gorsuch wished to go further and rule that the RFRA required the government to do so, but that issue was not necessarily ripe at the time. Of course, that will likely be one of the major cases before the Court in the future.

Our Lady of Guadalupe School v. Morrissey-Berru

In this case, the Supreme Court applied the ministerial exception to teachers at religious schools. The ministerial exception bars ministers from suing churches, synagogues, mosques, and religious institutions for employment discrimination. The Court, in a 7-2 decision, found that the school and religious institution meet the exception because the teachers are responsible for instructing the students in their faith. Whether the exception applies depends heavily on the beliefs of the particular faith and the employee’s role in teaching or developing it.

As a reminder, the ministerial exception grew out of the idea that religious institutions should be able to remove ministers without interference from the government. This makes sense for many reasons. For example, it would be weird, and unjust for a Lutheran church to be sued for discrimination because the pastor became a Buddhist and the church terminated his contract. The minister of a Lutheran church or the minister (or equivalent position) of any faith should obviously believe the teachings of that particular faith to hold that position.

Other issues and forms of discrimination are a little less clear (such as disability issues) but the Supreme Court determined that the employees subject to the ministerial exception do not have that protection. The reach of the exception will generally be limited as it only applies to people that teach the faith (i.e. are ministers). It is not going to be broadened to apply to those that work at religious institutions that are not tasked with ministerial duties (teaching the faith) such as janitors, administrators, and even those that work at many nonprofits that are owned by religious institutions (such as universities and hospitals).

Conclusion

This was a huge year for labor and employment decisions from the Supreme Court. The Court altered the impact of Title VII by finding that it protects individuals from discrimination based on their sexual orientation and gender identity. It also decided three cases regarding protections for religious beliefs (it found for the religious institutions in all three cases) including one case where the Court found that states cannot bar taxpayer aid to parochial and other religious run schools if they provide aid to nonreligious schools (essentially the Court found that states cannot discriminate against schools based on their religion). It seems inevitable that there will be a clash between religious protections and issues involving gender identity and sexual orientation. Courts will need to determine how these rights interact.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

2019 Labor & Employment Predictions Reviewed

Image stating "Happy New Year" to demonstrate the review of the 2019 labor and employment predictions.
Photo by Kelly Sikkema on Unsplash

If you recall this article from last year, then you remember that I made some labor and employment predictions for 2019. Some of them came true, but some of them were delayed, likely until 2020. Here is an overview of each of the labor and employment predictions and where the law or issue stands right now. 

1. Sexual Harassment Lawsuits Increased

In 2018, the last fiscal year that data is available for sexual harassment lawsuits, the data from the EEOC showed that these lawsuits increased:

 The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment.

The final figures for 2019 are not available yet. However, increasing sexual harassment litigation and charges at the EEOC is a trend that will likely continue. Sexual harassment is not being tolerated in the workplace. Moreover, companies are holding their executives, managers and others to a higher standard than they used to. For example, the CEO of McDonalds stepped down last year for having a consensual  relationship with an employee. Again, that is a consensual relationship without any sexual harassment. Many companies prohibit their C-suite from dating anyone at the company. Every company needs to consider how they can prevent sexual harassment. Training for employees, training for managers, and having an appropriate complaint procedure is absolutely necessary, or it will most certainly cost you in the long run. You can read more of how companies can prevent sexual harassment here and in this recent Chicago Tribune article where I discussed office romance in the workplace. 

2. The Supreme Court Has Taken Cases to Determine Whether Sexual Orientation is Protected.

The Supreme Court has consolidated 2 cases (Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda) to determine whether discrimination against an employee due to their sexual orientation is prohibited employment discrimination “because of sex” under Title VII. The Supreme Court also took a case (R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission) to determine “[w]hether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”

Essentially, the first cases will determine if sexual orientation is a protected characteristic under the law (whether it is illegal to discriminate against someone because of their sexual orientation). The second case will determine whether it is illegal to discriminate against someone because they are transgender.

The arguments were in early October; most people expect this to be one of the final decisions that the court issues in June. It is anyone’s guess how these cases will be decided. Most people expect that these cases will be highly divided.

3. The Department of Labor is Increasing the Salary Threshold (but I’m Off by 1 Day).

The Department of Labor did increase the salary threshold to be exempt from overtime (employees must still meet the duties test of one of the exemptions), but I missed my prediction by 1 day (it went into effect on January 1, 2020).

I wrote about this a couple of weeks ago. Here is what the DOL did:

The new overtime salary threshold will be $684 per week (which equals $35,568 per year). The new rule also raises the threshold for the highly compensated category from the current threshold of $100,000 to $107,432 per year. The new rule will also permit employers to use nondiscretionary bonuses and commissions that are paid on at least an annual basis within this count towards meeting the overtime salary threshold (but only up to 10%) of the salary level.

4. Paid Family Leave is Still Coming. It was not Implemented Nationally Last Year, but There Have Been Some States that Have Expanded Paid Leave.

Currently only D.C. and 8 states have passed Paid family leave laws. While no paid family leave proposals were enacted last year at the federal level, several states (and the federal government for its employees) have begun implementing paid family leave or increased paid sick leave.  

  • The House of Representatives has approved a bill to give 12 weeks of paid parental leave to federal workers and President Trump has shown support for the bill.  
  • The state of Washington passed SB 5975 in July 2017 to commence a paid leave program at the start of 2020.
  • Connecticut passed legislation in 2019 that establishes a paid family leave program. Employers must begin withholding and remitting contributions by January 1, 2021, and employees can begin using the leave on January 1, 2022.
  • Oregon also passed a law that will take effect in 2023 and will provide 12 weeks of paid time off for parental leave, leave for domestic violence issues, and if the person is ill or caring for a family member that is ill.
  • Nevada passed a paid leave law that went into effect on January 1 and will apply to employers with 50 or more employees. These employees will generally get 40 hours of leave per year. 
  • Washington D.C. residents will be eligible for paid leave beginning on July 1, 2020. Employees will be able to use “8 weeks to bond with a new child, 6 weeks to care for a family member that has a serious health condition, and 2 weeks to care for their own serious health condition.”
  • Maine passed a law that will go into effect in January 2021 that will require employers with 10 or more employees to provide up to 40 hours of paid leave every year. It is the first state to allow the leave to be used for any reason rather than merely sick leave.
  • California passed SB 83 which increased paid family leave from 6 weeks to 8 weeks beginning on July 1, 2020 and increases the wage replacement rate. 

With this year being an election year, one should expect that more states will begin to pass paid family leave.

5. NLRB Joint Employer Standard Will be Issued Soon

Again, this one was close. Originally, the National Labor Relations Board (NLRB) was set to issue the final rule in December 2019, but it has not yet issued the final rule. It has, however, ruled that McDonald’s should not be held responsible for any labor violations of its franchisees (i.e. it is not a joint employer). The final rule was not published in 2019, so employers should expect that it will be published sometime this year.

Moreover, both the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL) are set to issue joint employer rules of their own in 2020.

6. Independent Contractor Issues Did Arise in Many States

This prediction is a big yes. 2019 may be remembered as a tipping point for issues related to independent contractors. However, it is not due to the actions of the federal government. 

The change occurred because of state regulations and new legislation. The biggest impact on independent contractors last year came out of California and New Jersey (which may spread to other states in 2020). California passed AB 5 in September of last year and the legislation took effect on January 1, 2020. To be an independent contractor all 3 of the following elements must now be met:

(A) The hiring entity does not control or direct the worker in performing the work in fact or under the terms of a contract;

(B) The work performed is outside the “usual course” of the hiring entity’s business; [and]

(C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

It is very difficult for many workers to meet the second prong (outside the usual course of a company’s business). This prong (and specifics in the bill) is why the new test has come under a lot of controversy from independent truckers and freelance writers (who are now limited to 35 articles per publication before the company must hire them as employees, and as a result being hurt by this new law). These individuals are losing their flexibility due to the law as they can no longer be independent contractors.

Of course, the law will have an impact on the major companies in the gig economy (Uber, Lyft, DoorDash, etc.), but many of these companies do not plan on transitioning their independent contractors to employees right away as they plan to argue that these workers are not a part of their core business. For example, Uber will argue that they are a technology platform for several different digital marketplaces (Uber, Uber Eats, etc.) that match providers (drivers) and customers (riders) and their drivers are thus independent contractors. 

New Jersey was also a major player in changing the landscape of independent contractors this past year. The New Jersey Department of Labor and Workforce Development issued a $649 million fine to Uber for unpaid unemployment and disability insurance taxes, which Uber is challenging. Essentially, the ruling was for Uber failing to pay taxes for these workers because they were misclassified as independent contractors rather than employees.

7. Medical Marijuana Protections Update

Marijuana laws have continued to change all across the country. The Health Employment and Labor blog from Epstein Becker Green does a nice job explaining the past year of marijuana changes.

Illinois became the 11th state to legalize the use of recreational marijuana and the law took effect on January 1, 2020. Under the law, employers in Illinois may still take action against employees or applicants that fail a drug test provided that it is in the employer’s reasonable policy.

Epstein Becker Green’s blog also notes that:

New Mexico and Oklahoma each passed legislation that prohibits employers from discriminating against employees because of their status as registered medical marijuana users; however, the Oklahoma law does provide an exception for safety-sensitive jobs and for situations which the employee possesses, consumes or is under the influence of marijuana at work.

In Nevada, a new law taking effect on January 1, 2020, prevents employers from failing or refusing to hire an applicant because the applicant tests positive for marijuana. Perhaps not surprisingly, New York City went one step further when it passed an Int. 1445-A, barring most employers from conducting any pre-employment testing for marijuana or THC. 

Similarly, New Jersey now prohibits employers from disciplining or terminating an employee solely based on that individual’s status as a registered medical marijuana user.  While the law does not prevent employers from prohibiting or disciplining employees from using marijuana during work hours or on workplace premises, Garden State employers with a drug testing policy are required to offer employees and applicants who test positive the opportunity to explain the positive result.

Companies should expect more changes in marijuana law in 2020.

8. ICE and Notice of Inspection Statistics

We are still waiting to see the exact numbers for 2019, however,  Miriam Jordan’s New York Times article, More Than 2,000 Migrants Were Targeted in Raids. 35 Were Arrested, confirms that 3,282 Notices of Inspection were issued as of July 22, 2019. The article also provides key statistics from Immigration and Customs Enforcement. It appears that notices of inspection are at least on pace to be at an increased level from the Obama administration.

9. DACA’s Constitutionality to be Determined in 2020

The Supreme Court has consolidated three cases that concern DACA (Department of Homeland Security v. Regents of the University of California, Trump v. NAACP, McAleenan v. Vidal)

As I said in a prior post:

These cases basically deal with whether the Department of Homeland has the authority to end the program which 700,000 people rely on. Trump has expressed support for DACA, but wants Congress to act on a more permanent solution (likely as part of a wider deal on immigration).

I thought that the Supreme Court would have accepted the case a bit earlier than they did (in first half of 2019), but the case was ultimately not on the 2018-2019 docket. It is instead on the 2019-2020 docket, so we will get an answer on the constitutionality of the DACA program this year. Everyone expects this to be one of the most contentious cases this term with a decision in late June 2020.

10. Work Authorization for the spouses of H-1B Visa Holders with an Approved I-140 (Essentially their Employer Sponsored Green Card Petition) Will Likely be Determined in 2020. 

I thought that the government would have reached a decision on the Employment Authorization Documents for spouses of H-1B visa holders with an approved I-140 (there are some immigrants that are waiting 10 or more years from the approval of their employer sponsored petition for them to become green card holders to them finally becoming permanent residents) in 2019. Fortunately, there has been a delay, which is great for H-1B visa holders as their spouses can continue to renew their work authorization until a decision is issued. 

Big Law Business from Bloomberg law explains the current state of the law:

The fate of H-4 employment authorization hangs in the balance as 2019 [came] to a close. It’s been nearly a year since the Department of Homeland Security sent the Office of Management and Budget a proposed rule that would rescind a 2015 regulation extending certain H-4 visa holders—the spouses of H-1B professional workers—the opportunity to seek U.S. employment.

The DHS has offered little explanation as to why the rule remains unpublished, but recently affirmed its commitment to proceed with rescission as early as spring 2020, albeit referring to that timeframe as “aspirational.”

In the meantime, H-4 employment authorization faces a second, more pressing threat. On Nov. 8, in Save Jobs USA v. DHSthe U.S. Court of Appeals for the District of Columbia Circuit held that a group of American IT workers has standing to challenge the H-4 regulation.

The court remanded the case to the district court to address the merits of Save Jobs’ claim—that the DHS lacks authority to extend employment authorization to H-4 spouses absent explicit congressional direction.

Essentially, there is now a court case that will be decided over the next year or two (through a decision and appeals) and a regulation that may be released in 2020 (however, that is what the agency said in 2019 so we will see if that holds true) that will provide clarity on the issue. Of course, if a Democratic candidate is elected in 2020, then these individuals will likely keep their work authorization (or will regain it in 2021).

Conclusion

2019 was a huge year for labor and employment law. 2020 will be another big year as the current administration tries to put out more regulations and decisions before the 2020 presidential election. I will follow along with these pending cases this year, and address them here as decisions are made. I also be making some more labor and employment predictions for 2020, so stay tuned.

Wishing everyone a happy and healthy 2020- and for those of you who have already broken your resolution (did you already eat that piece of pie you swore off of? I know I did.), remember every single day is a day for progress. Cheers to that!

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.