What the Supreme Court’s Latest Rulings Mean For Employers

1. What the Supreme Court’s Latest RulingsMean For Employers

2. A Supreme Employment Schedule Anthony J. Oncidi, Esq. Proskauer Rose LLP Heads Labor and Employment Group in Los Angeles, CA David B. Weisenfeld, Esq. XpertHR Legal Editor Former US Supreme Ct. Correspondent New Providence, NJ What the Supreme Court’s Latest Rulings Mean For Employers

3. Same-Sex Marriage Nationwide Landmark Ruling Provides Clarity • No need to bury the headline! • Biggest case of Supreme Ct.’s term had employment law implications • The Court’s 2013 Windsor ruling struck down Defense of Marriage Act, which denied benefits to same-sex couples, but left significant unanswered questions in its wake. 1) What about states with same-sex marriage bans in place? 2) Did those states have to recognize out-of-state same-sex marriages? • Post-Windsor result was a hodge-podge (more states legalized, but many still banned) • Begged for resolution and the Supreme Court provided it in Obergefell v. Hodges. • Ohio man who married his dying companion in Maryland (where same-sex marriage is legal) and could not collect death benefits in Ohio (where it was not) What the Supreme Court’s Latest Rulings Mean For Employers

4. Obergefell v. Hodges June 26 ruling • Obergefell along with gay couples from Michigan, Kentucky and Tennessee challenged four statewide same-sex marriage bans • Claimed the bans violated Constitution’s Equal Protection Clause • Supreme Ct. agreed, and did so in a way that wasn’t a “half-measure.” • Ruled 5-4 that Constitution requires ALL states to license same-sex marriages and to recognize marriages lawfully licensed and performed out-of-state • Justice Anthony Kennedy authored the opinion and left no doubt where the majority stood • State laws at issue are invalid that exclude same-sex couples from civil marriage Tony—What jumped out at you most with this opinion? What the Supreme Court’s Latest Rulings Mean For Employers

5. Obergefell v. Hodges How Marriage Has Evolved • Supreme Ct. stressed that right to marry is protected by Constitution • Justice Kennedy repeatedly pointed to the Court’s holding in Loving v. Virginia (1967) striking down state bans on interracial marriage • Held unanimously that marriage is a “vital personal right” • Drew parallels between Loving and the present case • Debunked theory that since marriage had previously been between one man and one woman, that’s the way it always must be • Said the institution has “evolved.” • “Excluding same-sex couples from marriage conflicts with a central premise of the right to marry.” What the Supreme Court’s Latest Rulings Mean For Employers

6. Takeaway Points For Employers Immediate Implications? • Complete uniformity in the tax and benefits treatment of all married couples (regardless of gender combinations) • I’m certain most employers will welcome this development. • Some companies may stop offering benefits to domestic partners and, instead, limit benefits only to married couples. In last year’s Supreme Ct. term, the Hobby Lobby case was the key decision—allowing employers with religious objections to avoid providing contraceptive coverage. What about employers who oppose same-sex marriage on “religious grounds?” How will they respond? • Some have threatened to drop spousal benefits altogether rather than extend them to same-sex married couples. What the Supreme Court’s Latest Rulings Mean For Employers

7. Obergefell v. Hodges What does it mean for employers? • Justice Kennedy acknowledged religious objections towards end of opinion. • Noted First Amendment ensures religious orgs. and persons have proper protection • But just as quickly as subject comes up, Kennedy makes clear this is a far cry from Hobby Lobby without explicitly saying so. • We can have open debate, but Constitution doesn’t permit state to bar same-sex couples from marriage on same terms as accorded to opposite-sex couples. • Court has been chided at times for deciding cases in most limited manner possible. Fair to say, this clearly is not one of those times. What the Supreme Court’s Latest Rulings Mean For Employers

8. More: Obergefell v. Hodges Employers Played Role • Companies like Apple, Wal-Mart, Coca-Cola had urged Supreme Ct. to legalize gay marriage in all 50 states in a friend-of-the-court brief Did that support from corporate America (or at least big swaths of it) play any role in the Supreme Court’s ruling? What the Supreme Court’s Latest Rulings Mean For Employers

9. What Dissenters Had to Say Chief Justice Roberts • Policy arguments for same-sex marriage may be compelling, but they are not legal arguments • Decision should have been left to thestates and democratic process—not to fivelawyers “who have closed the debate.” • Thoughts? What the Supreme Court’s Latest Rulings Mean For Employers

10. Incongruous Situation? Another Employment Implication (ENDA) Tony, you’ve pointed out to me a potentially incongruous situation set up by this ruling. Tell our attendees about that… • In 29 states, it is still legal to discriminate against job applicants and employees based on sexual orientation. • So in those 29 states, employees may marry same-sex partner on Sunday afternoon and lose their job on Monday with no legal recourse • Senate passed Employment NonDiscrimination Act, which would have provided legal protections based on sexual orientation, but bill languished in House. Federal legislation still seems unlikely but will we see a lot of states changing their laws in the aftermath of the Supreme Ct.’s ruling? What the Supreme Court’s Latest Rulings Mean For Employers

11. King v. Burwell Affordable Care Act • What would be a Supreme Court term lately without an Affordable Care Act challenge? (third case in four years) • In 2012, justices upheld bulk of the ACA clearing the way for law to take effect • In 2014, Ct. chipped away slightly by carving out exemption for employers, allowing them to deny contraceptive coverage to ee’s on religious grounds • This year a much more direct challenge to the ACA inKing v. Burwell and Supreme Ct. sided with Obamaadministration • Issue—Can individuals in a state without its own healthexchange receive tax credits through a federal healthexchange? • Case brought by four individuals in VA, which does nothave its own health exchange, relies on federal What the Supreme Court’s Latest Rulings Mean For Employers

12. ACA—King v. Burwell June 25 ruling • Case turns on phrase in the ACA, “an Exchange established by the state.” • Stakes high because only 16 states plus D.C. have their own exchanges • Opponents of the law argued “by the state” language excluded federal exchanges if the state did not create a health exchange of its own. • But the Supreme Court disagreed by a 6-3 vote (Roberts and Kennedy joining four more liberal members of the Court) HELD—ACA clearly contemplated its provisions should apply in every state • Writing for the Court, CJ Roberts said, “It is implausible that Congress meant for the law to operate in this manner.” • Whole point of this ACA provision is to create a federal fallback in case a state did not establish its own exchange. • Without tax credits, a state’s individual insurance market could plunge into a “death spiral.” What the Supreme Court’s Latest Rulings Mean For Employers

13. So What’s It All Mean For Employers? ACA—King v. Burwell Decided June 25 • How significant is the Supreme Court’s ruling in King v. Burwell? • Some speculated 8 or 9 million people could have lost health insurance in those 34 states had case gone the other way because they would lose their tax credits • If I’m an employer, does this opinion affect my business? • Does this mean the Affordable Care Act has cleared its last hurdle and is here to stay? • It seemed like the potential ramifications gave pause to a couple of justices who may have otherwise had reservations about the ACA with talk of possible destabilization of the insurance market. Fair to say? What the Supreme Court’s Latest Rulings Mean For Employers

14. Young v. UPS Pregnancy Discrimination March 25 opinion • Notable ruling flying under the radar • Case brought by former UPS driver who claimed the company refused to accommodate her pregnancy with a light-duty accommodation (20 lb lifting restriction) • UPS defended that lifting up to 70 pounds was “essential function of the job” • However, Young argued that UPS accommodated other workers injured on and off the job who sought light-duty work, but refused to do so for her • Filed suit under the Pregnancy Discrimination Act. UPS won in lower courts. What the Supreme Court’s Latest Rulings Mean For Employers

15. Young v. UPS Pregnancy Discrimination • HELD—Lower courts erred in not considering why UPS could not accommodate pregnant women seeking light-duty work assignments while it was accommodating other non-pregnant employees • Driver raised genuine jury issue about whether employer’s policy imposed significant burden on pregnant workers, so her case is reinstated (6-3 vote) Tony, the ruling may have been bad news for UPS, but wasn’t necessarily all bad for employers generally. Was there some language that could aid employers? What the Supreme Court’s Latest Rulings Mean For Employers

16. More: Young v. UPS Chiding EEOC • EEOC July 2014 Enforcement Guidance—advised employers that the PDA requires them to provide same benefits and leave to women affected by pregnancy as they do for other workers • S. Ct. refused to rely on EEOC’s reasoning • Majority said just because an employeraccommodates one or two workers does notmean all pregnant employees are entitled tosimilar accommodations, regardless ofnature of their jobs • Don’t have to treat pregnant workers “more favorably” How significant is this ruling? Should employers be taking a fresh look at their policies for pregnant employees? What the Supreme Court’s Latest Rulings Mean For Employers

17. UPS Changes Its Policy • Effective January 1, 2015 (while this case was pending), UPS changes its policy • Now offers temporary light-duty assignments to pregnant workers • However, the change does not providerecourse, such as back pay, to pregnantwomen whose past accommodationrequests were denied What the Supreme Court’s Latest Rulings Mean For Employers

18. EEOC v. Abercrombie & Fitch Appearance Policy/Religious Discrimination June 1 decision • Involved Muslim job applicant who wore a hijab (head scarf) • Abercrombie had a “look policy” described as classic East Coast collegiate style, prohibited caps as too informal for its image • District manager advised interviewer that the applicant’s headscarf would conflict with company’s appearance policy • So even though she had been rated as “qualified to be hired,”Abercrombie refused to hire her • Led to Title VII lawsuit for religious discrimination and SupremeCourt sided with the jilted applicant in an 8-1 ruling (employeron the hook) Tony, what was the Supreme Court’s reasoning here? Does it matter that applicant never directly requested an accommodation? What the Supreme Court’s Latest Rulings Mean For Employers

19. EEOC v. Mach Mining Under the Radar Case Affecting Employers • At issue—How far must EEOC go to try to resolve discrimination claims before suing an employer? • Federal law requires EEOC to try to end alleged discrimination through “informal methods of conference, conciliation and persuasion” • Employers claimed agency was too quick on thetrigger to sue • Case involved an Illinois company the EEOC sued forfailing to hire female job applicants • Company countered that the agency never madegood-faith effort to settle What the Supreme Court’s Latest Rulings Mean For Employers

20. Mach Mining: Right of Review April 29, 2015 • Supreme Ct. finds courts have a right to review the conciliation process, but a limited right What’s the takeaway from this case for employers? • EEOC claimed the ruling represents a victory for victims of discrimination. Is that a fair reading? Will this case do anything to reduce employment litigation (or at least make claims less likely to get to court)? What the Supreme Court’s Latest Rulings Mean For Employers

21. Integrity Staffing v. Busk FLSA Security Screenings December 9, 2014 • Fair Labor Standards Act (FLSA) case dealing with whether Amazon warehouse workers had to be paid for time spent undergoing mandatory antitheft screenings after their shifts • Workers spent roughly 25 minutes per day waiting in line at metal detectors • Argued this activity was required by and solely benefitting their employer • But Supreme Court said no they did not have to be paid for that time in a unanimous ruling What’s your take on what the Court had to say? One employment attorney predicted this case will make it harder for employees to win lawsuits seeking compensation for time spent waiting for their computers to boot up. Do you see it that way? Any other implications? What the Supreme Court’s Latest Rulings Mean For Employers

22. What’s Coming Up/On Deck Circle Fall 2015 • Friedrichs v. California Teachers Association • On June 30, the Supreme Court agreed to hear a major case affecting the future of public employee unions • Challenges mandatory union dues that all Calif. teachers are required to pay whether they are union supporters or not. What’s at stake here, and why is this case so potentially significant? • Tyson Foods v. Bouaphekeo—Another FLSA-related case • Did a lower court err in allowing more than 3,000 workers to bring a class action for time spent putting on and taking off protective clothing, plus walking to their work stations? • Tyson says many of the workers suffered no actual injury • 8th Circuit Court of Appeals affirmed $5.8 million award, finding class properly certified Could this have implications for other types of employment-related class actions? What the Supreme Court’s Latest Rulings Mean For Employers

23. Questions Fire Away Inquiring Minds Want to Know: What the Supreme Court’s Latest Rulings Mean For Employers