Here’s how the Supreme Court shapes employment laws

LAS VEGAS — The last term of the US Supreme Court, which ended in July, was light on employment law cases, but there were still important decisions that HR professionals should revisit, according to Joe Beachboard, lawyer at Ogletree Deakins in Los Angeles. He spoke in a concurrent session on September 11 at the 2021 SHRM Annual Conference and Exhibition.

Here are some of the key cases decided by the High Court and some of the issues that may loom on the horizon for the next term, which begins on October 4.

Access to work computers

Van Buren v. United States was not directly related to the job. The case involved a police officer who used valid credentials to access information in a law enforcement database that he was authorized to obtain, but used the information for unauthorized purposes . The question in court was whether the agent had violated the Computer Fraud and Abuse Act (CFAA), which typically targets hackers and criminalizes intentional unauthorized access to a computer or exceeding it. Authorized access.

In a 6-3 decision, the United States Supreme Court found that a person violates the CFAA when they access a computer with permission but obtain information, such as files, folders or databases, located in areas of computer that are prohibited to him. However, the court said, the law does not cover people, such as the officer in this case, who misuse information otherwise available to them.

Van Buren was a criminal case, but Beachboard said the court’s analysis would apply to civil suits under the CFAA as well. So employers may want to assess their IT policies in light of the decision and pay close attention to any provisions restricting access to sensitive and confidential business information, he said.

Trade union access to employer property

In Cedar Point Nursery v. Hasid, the Supreme Court ruled in a 6-3 decision that a California regulation granting union organizers access to farm employers’ property to talk with workers about the benefits of collective bargaining is unconstitutional. Beachboard said the decision was a victory for property rights advocates and a setback for unions.

Although the case is specific to agricultural companies in California, he said, the ruling “sends a strong message” about how the court can rule in other cases concerning union access to construction sites.

Although the National Labor Relations Act allows employers to deny access to property to non-employees, Congress is currently considering the Right to Organize Protection Act (PRO), which would make significant changes to the law. American labor law. The PRO law would expand trade union rights and, if passed, would likely face legal challenges from corporate groups.

Protected speech

In Mahanoy Region School District c. BL, the Supreme Court ruled 8-1 with a high school cheerleader who was unhappy about not being on the varsity team and posted a photo on her social media account of her and a friend raising middle finger. The photo included text that said, “f-ck school f-ck softball f-ck cheer f-ck everything.” She was then suspended from the junior varsity team.

While the Supreme Court has recognized that public schools may have an interest in regulating student speech, the decision to suspend off-campus student specific conduct violated the First Amendment.

The ruling only applies to public schools, but Beachboard said the case is relevant to employers who must decide whether to take disciplinary action against employees based on their social media posts. Even for private employers, he said, the ruling shows the High Court to be very concerned about imposing limits on expression.

LGBTQ job protections

HR professionals should also be familiar with Bostock v. Clayton County, Georgia., which was decided in June 2020. The Supreme Court ruled that employers cannot fire workers because of their lesbian, gay, bisexual, transgender or queer (LGBTQ) status. The ruling clarified that “sex” discrimination under Title VII of the Civil Rights Act 1964 includes sexual orientation and gender identity.

Many national and local anti-discrimination laws already protected LGBTQ workers before the ruling, but employers in places without such laws need to update their manuals and understand the new liability risks. “Even if you’re in a state where you actually had one of these laws in place, you might want to review and update your policies,” Beachboard suggested.

He said employers should consider the impact of the decision on toilet and locker room access, dress codes and grooming standards, and the use of pronouns.

What is coming?

During the next term, the Supreme Court will hear Badgerow vs. Walters, which involves a whistleblower claim and whether a federal court has the power to uphold or set aside an arbitration award in the case.

The court will also hear a benefits case, Hughes v. Northwestern University, regarding an allegation that plan members were charged excessive fees and the plan trustees breached their duty of care under the Employees Retirement Income Security Act.

While there are no cases on the agenda for the following issues, Beachboard said these hot topics are on the horizon:

  • The legalization of marijuana and how drug testing policies interact with laws that prevent employers from monitoring worker conduct after hours.
  • Religious discrimination and reasonable accommodation.
  • Disputes related to COVID-19 regarding immunization warrants, disability-related and religious accommodations, remote work rules, wages and hours laws, and more.

Beachboard noted that the Supreme Court will be holding oral arguments in person in the next term, but that access will be limited. Thus, the court will continue to allow the public to listen live to the audio of the arguments.

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