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High Court Mulls Gig Work, Union Fights, Lawyers’ Right to Sue

Sept. 28, 2021, 5:59 PM

The U.S. Supreme Court’s upcoming term has a slate of issues, including gig worker arbitration, union fee disputes, and a school prayer battle, that if taken up by the justices will have broad impact on the workplace.

Dozen more petitions wait in the wings for the court’s review that attorneys are watching closely. These include cases about a law firm equity partner’s right to sue over discrimination, standards for proving bias, and whether California truckers should be exempt from a controversial state law that threatens their independent contractor status.

The justices could also be asked to weigh in on legal challenges to employer Covid-19 vaccine mandates, attorneys and academics say. A separate higher education affirmative action case is pending review that could affect business diversity initiatives.

The high court’s new term begins on Oct. 4.

“It’s shaping up to be a term on abortion, guns, and religious issues,” said Michael Foreman, a law professor at Penn State University and director of the Civil Rights Appellate Clinic. “But having said that, simply because these issues in employment are not on the docket yet, I wouldn’t be surprised if we see more to come.”

Gig Arbitration

The Supreme Court could once again consider cases that reckon with the power of the Federal Arbitration Act, which governs private dispute resolution. The justices have frequently interpreted the law and bolstered it over the past two decades.

A unique California law, the Private Attorneys General Act, provides the latest test of the arbitration process. In separate cases, gig companies such as Uber Technologies Inc., DoorDash Inc., and Postmates want the high court to determine that the federal law preempts PAGA, which allows private citizens to file lawsuits on behalf of the government and has been used to circumvent arbitration agreements.

“Arbitration is prominent in terms of what’s before the court now,” said Rae Vann, a management attorney with Carlton Fields P.A. who has authored numerous friend-of-the-court briefs in labor and employment cases. “The court could have the opportunity to clarify its longstanding precedent in the context of state laws.”

One of the cases, Postmates, LLC v. Rimler, involves current and former couriers who sued the app-based delivery company, arguing they should be classified as employees entitled to benefits rather than independent contractors. Gig companies have used arbitration agreements to avoid rulings on the merits in frequent misclassification suits.

The impact of a Supreme Court ruling could ripple beyond California. Other petitions raising the arbitration issue are Postmates, LLC v. Santana; Coverall North America, Inc. v. Rivas ; Uber Technologies v. Gregg; and DoorDash, Inc. v. Campbell.

VIDEO: App-based companies and governments are at odds over how to properly classify gig economy workers.

Union Fights

Conservative legal groups continue to line up petitions at the Supreme Court that could be sequels to the landmark 2018 ruling in Janus v. AFSCME, which banned public sector unions from requiring workers to pay dues.

The National Right to Work Legal Defense Foundation represents workers in a pair of cases—Troesch v. Chicago Teachers Union and Fischer v. Murphy—that challenge restrictions on when public sector employees can withdraw their authorization to pay dues. In Fischer, two teachers want the justices to overturn New Jersey’s escape window that’s limited to one 10-day period per year.

In Bennett v. AFSCME , the Liberty Justice Center represents a school custodian who’s asking the court to consider whether public sector unions need to get a special waiver from workers to collect dues that explains their rights under Janus. Unions typically deduct dues after getting signed membership cards and authorization forms to have dues transferred from their paychecks.

Two separate cases involving United Airlines workers raise post-Janus issues involving the Railway Labor Act.

The Mackinac Center for Public Policy represents airline customer service workers in Rizzo-Rupon v. International Association of Machinists, seeking to apply a Janus-style ban on nonmember fees to private sector workers unionized under the act. The National Right to Work Legal Defense Foundation filed a petition for an airline employee in Baisley v. International Association of Machinists, asking the court to outlaw the requirement that RLA-unionized workers affirmatively opt out of paying dues.

It’s more likely than not that the Supreme Court will take up a case that clarifies union responsibilities in light of Janus, said Joseph Slater, a labor law professor at the University of Toledo. There’s also a fair chance the justices might examine the RLA’s opt-out scheme for dues, he said.

But it would be “shocking” if the court went “full Janus” on the RLA, Slater said. Extending the First Amendment prohibitions on mandatory nonmember fees from the public to the private sector would require “radical” changes to the doctrine for determining what counts as state action that could have broad and destabilizing consequences, he said.

Workplace Ripple Effect

Some petitions outside of the labor and employment context could have job implications, as well. Harvard University’s battle over affirmative action policies in higher education is one example, attorneys and academics said.

If the court take that case and makes a ruling on racial balancing, it will have significant implications for diversity programs private businesses offer, said Randy Coffey, an employment attorney with Fisher Phillips LLP in Kansas City.

Penn State’s Foreman said a few cases currently on the justices’ docket could also be instructive on how they view issues that could overlap with labor and employment cases in the future.

Carson v. Makin, for example, deals with religious school funding and could provide insight into how Justices Amy Coney Barrett and Brett Kavanaugh will weigh religious freedom issues that may come up in job accommodation cases.

Other Cases to Watch

Employment discrimination:

  • Law Firm Partners: Whether law firm equity partners qualify as employees who can bring race and sex discrimination lawsuits under federal law. Also, asks whether the correct causation standard for bias cases was used under high court precedent. Case: Lemon v. Myers Bigel, P.A.
  • Evidence of Bias: Whether an inference of discrimination can be supported if a worker and their comparators don’t share the same position, duties, and supervisor. Case:Gonzalez-Bermúdez v. Abbott Laboratories P.R. Inc.
  • Age Bias Standard: Whether the Age Discrimination in Employment Act require the workers to prove that age was the sole reason for their termination. Case: Pelcha v. Watch Hill Bank
  • Steel-Toe Shoes: Whether an employer’s steel-toed shoe requirement is an essential component of a disabled employee’s job for purposes of determining whether she is a “qualified individual” under the Americans with Disabilities Act. Case: Holmes v. General Dynamics Mission Systems Inc.

Wage and Hour:

First Amendment

  • Officer Free Speech: Whether a police officer had a First Amendment right to speak to a local prosecutor about corruption in his police department. Case: Bohler v. City of Fairview
  • Football Field Prayer: Whether a public-school football coach, who says a brief, quiet prayer by himself while at school and visible to students, has First Amendment protection. Case: Kennedy v. Bremerton School District
  • Religious Discrimination: Whether the First Amendment protects a religious group’s right to hire someone who practices the same religion, and whether denying an exemption to antidiscrimination law violates the Free Exercise Clause. Case: Seattle’s Union Gospel Mission v. Woods

To contact the reporters on this story: Erin Mulvaney in Washington at; Robert Iafolla in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; Andrew Harris at