Executive Power, Detainee Wages Top Justices’ Employment Cases

The US Supreme Court’s docket this term features a handful of cases that could potentially reshape the employment and labor litigation landscape, including the firing of a Federal Trade Commission official and a federal contractor’s immunity defense against forced labor claims from immigration detainees.

The justices have so far granted a small list of petitions with employment and labor law implications, but are set to hear at least one dispute by November concerning the legal and constitutional protections that apply to prisoners or detainees who perform work.

The FTC case and equal protection challenges to states banning transgender girls and women from competing on female athletic teams are likely to have significant ripple effects in the labor and anti-bias legal arenas.

More cases are likely to come this term.

The high court is expected to ultimately review the merits of ongoing disputes over President Donald Trump’s unprecedented terminations of Democratic members of the National Labor Relations Board and Merit Systems Protection Board, as well as mass firings of federal workers after the majority used its controversial “shadow docket” to greenlight those actions as litigation plays out.

Here’s how the upcoming Supreme Court term is kicking off for employment law:

Separation-of-Powers

The Trump administration’s push to topple a 90-year-old precedent and expand the White House’s power over federal agencies that previously operated outside of its direct control, including those regulating labor and employment, will take center stage in Trump v. Slaughter.

That case concerns a FTC Democratic member’s challenge to his termination. But it goes to the heart of the Supreme Court’s Humphrey’s Executor v. US decision, which upheld the constitutionality of job shields for FTC members by allowing only dismissals for “inefficiency, neglect of duty, or malfeasance in office,” and opened the door for similar safeguards for other independent agencies.

The administration hasn’t argued that Humphrey’s Executor must be overturned to justify Trump’s dismissal of NLRB member Gwynne Wilcox and MSPB member Cathy Harris, who have tenure protections similar to those of FTC members. The US Justice Department claimed the justices’ 2020 Seila Law v. CFPB ruling suggests they’re not insulated by Humphrey’s Executor due to the executive authority they exercise.

Cases arising from the president’s recent firings raise novel legal questions. The high court’s final decision in Slaughter could offer precise guidance to lower courts on the scope of presidential removal power.

The case will be argued during the court’s December argument session, which begins Dec. 1 and ends Dec. 10.

Detainee Wage Case

Attorneys for Geo Group Inc. and a class of civil immigrant detainees will face off at oral arguments on Nov. 10 over whether the high court should allow the private prison operator to seek immediate appellate review of its derivative sovereign immunity defense.

GEO, which has a US Immigration and Customs Enforcement contract to run detention facilities, is accused of forcing detainees in Colorado to perform various jobs—including preparing food, operating the library, and doing laundry—or risk solitary confinement under a voluntary work program. They were paid just $1 per day, the suit said.

The US Court of Appeals for the Tenth Circuit last year upheld a district judge’s summary judgment ruling on GEO’s immunity defense, saying immediate review is unwarranted before the detainees’ underlying claims are addressed.

The justices now have an opportunity to resolve a split among eight federal circuit courts, five of which the private prison operator said foreclosed immediate review of district court orders blocking government contractors from raising a derivative sovereign immunity defense in litigation regarding their contracts.

A Supreme Court order mandating immediate circuit review of the legal defense, which allows government contractors to claim immunity that the US would have had if sued for the same actions, would benefit cases beyond the labor law context. But for detained immigrant workers, an additional procedural step in the litigation process would further extend the timeline for arguing the merits of their allegations in court, attorneys and prison labor scholars said.

GEO’s high court petition maintained that the justices need to clear up the circuit divide, as the legal path for litigants is currently unclear.

The underlying lawsuit is just one of several currently being litigated across the US for similar programs, and the question of whether state labor law applies to federal immigration detainees has been a novel issue.

Transgender Rights

High court cases Little v. Hecox and West Virginia Board of Education v. B.P.J. center on whether state laws banning transgender athletes from participating on female sports teams violate the US Constitution’s Equal Protection Clause and Title IX of the Education Amendments of 1972.

A ruling in both disputes could significantly affect transgender rights in sports, but also potentially clarify the scope of anti-discrimination protections for gender identity in broader contexts like employment and education, court watchers said.

Transgender workers have invoked the Equal Protection Clause in discrimination cases, including a recent challenge to the Equal Employment Opportunity Commission’s retreat from transgender discrimination enforcement.

Last term, the Supreme Court declined to clarify the level of review for Equal Protection claims in transgender bias cases, but three conservative justices expressed that the more lenient rational basis applies, rather than “intermediate” scrutiny.

An oral argument date hasn’t yet been scheduled.