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One issue a fully staffed nine-member U.S. Supreme Court is likely to consider is employment arbitration agreements’ use of class action waivers, which are designed to prevent workers from filing such lawsuits.
There is a circuit court split on the issue, which is generally considered a prerequisite for Supreme Court consideration.
While the 7th and 9th U.S. Circuit Courts of Appeal ruled the agreements violate the National Labor Relations Act, the 2nd, 5th and 8th held the Federal Arbitration Act allows for class action waivers, said Kristen E. Michaels, a partner with McDermott Will & Emery L.L.P. in Chicago.
Other potential issues that could be considered by a high court that is expected to be more conservative with a Trump appointee include the scope of Title VII of the Civil Rights Act of 1964, the concept of joint employers, immigration, retaliation and wage-andhour litigation.
Recently, the court has apparently been reluctant to accept blockbuster cases, perhaps because the justices did not want to risk a 4-4 ruling, “or they were trying to send a signal to the Senate (that) ‘We want a ninth justice before we take on anything big,’” said Richard R. Meneghello, a partner with Fisher & Phillips L.L.P. in Portland, Oregon.
In addition, with a full contingent the Supreme Court might revisit some of those cases that had a 4-4 ruling, such as its June ruling in Friedrich v. California Teachers Association, which focused on the issue of mandatory union fees, said Christina A. Stoneburner, a partner with Fox Rothschild L.L.P. in Roseland, New Jersey.
Employers are likely to find a U.S. Supreme Court that is more amenable to their interests with the naming of an appointee by President-elect Donald Trump to the vacant ninth spot on the high court, experts say.