Federal updates:

Workplace cases before high court

(Oct. 16, 2007) Seven employment cases —five discrimination cases, an employee benefits case, and a pay dispute — are pending before the U.S. Supreme Court in its 2007-2008 term that began on Oct. 1.

Four of the five discrimination cases were brought under the Age Discrimi-nation in Employment Act (ADEA). Two raise the questions of whether age-based provisions in a state disability retirement plan violate the ADEA and whether the statute permits retaliation claims against federal government employers.

Two other ADEA-related cases involve issues that relevant to other discrimination charges, namely:
• the admissibility of “me-too” evidence of discrimination by other supervisors
• whether an Equal Employment Opportunity Commission intake questionnaire constitutes a charge.

The fifth discrimination case asks whether retaliation claims may be filed under civil rights law prohibiting race discrimination in contracts.

The benefits case was brought under the Employee Retirement Income Security Act. It claims breach of fiduciary against an employer for not implementing an employee’s chosen 401(k) investment strategy.

Another workplace case involves a contract dispute between a television actor and his manager over compensation. At issue is whether the Federal Arbitration Act preempts a California law that gives the state labor commissioner jurisdiction over the contract.

(Oct. 16, 2007) The National Labor Relations Board has ruled that an applicant for employment is not protected against discrimination in hiring based on his or her union affiliation unless that applicant is genuinely interested in an employment relationship with the hiring employer. The board explained, “... one cannot be denied what one does not genuinely seek.”

The case involved the International Brotherhood of Electrical Workers (IBEW) and their use of “salts” — union supporters who are sent to take a job with a nonunion employer and once hired, attempt to organize the workers. When union members were not hired by a company, the IBEW would follow up by filing hiring-discrimination and other unfair labor charges.

The presumption that the National Labor Relations Act protects any individual who submits an application is inconsistent with the text and basic purposes of the Act, said the board. Submitting applications to provoke litigation, rather than to seek work, is not protected activity.

The case has been returned to an administrative law judge to reconsider claims against the Toering Electric Co. in Michigan in light of the board’s decision.