Skip to Content

A Review of the Supreme Court’s 2017-2018 Term

Labor & Employment Publications

The United States Supreme Court concluded its 2017—2018 term with a bang, issuing decisions in several highly publicized cases impacting labor and employment, including Epic Systems Corp. v. Lewis and Janus v. AFSCME. This term marked the first full term for Justice Gorsuch after last year’s dramatic appointment battles. Not surprisingly, with the addition of Justice Gorsuch to the Court, many of the labor and employment decisions this term were employer-friendly.

Notably, many of the decisions of the Court from this term were sharply split along ideological lines. Of the seven labor and employment decisions issued during the 2017—2018 term, four were split 5 to 4 and only two were unanimous/per curiam decisions. This split marks a break with the trend we saw developing over the past several years of increased Court consensus in labor and employment cases. For example, in the 2013—2014 term, six of ten labor and employment decisions were unanimous, and in the 2015—2016 term, six of eleven decisions were unanimous with two cases decided by a vote of 6 to 3.

In addition to displaying a sharp ideological divide, the Court’s labor and employment decisions from the 2017—2018 term—with one notable exception—displayed a tendency by the Justices to issue narrow rulings that focus on the specific facts presented, rather than broad rulings with more widespread effects. That is not to say, however, that this term was lacking in excitement or impact. The Court saved one of the most significant labor and employment cases of the past decade (Janus) for the very last day of the term and extended its continuing trend of reliance on protecting First Amendment rights to labor and employment cases in unexpected ways.

The seven most notable labor and employment-related cases that were issued by the Court during this term addressed a wide variety of issues, including the enforceability of contract language addressing significant employment topics (Epic SystemsCNH Industrial N.V.), statutory interpretation of important employment laws (Digital Realty, Encino Motorcars), the scope of presidential powers impacting immigration and employment opportunities for foreign nationals (Trump v. Hawaii), and the impact of the First Amendment in business relationships (Masterpiece Cakeshop, Janus). We will address each in turn, grouped by issue, as follows:

  • The enforceability of employment contract clauses requiring individual arbitration of employment disputes (Epic Systems)
  • The proper interpretation of union contract language relating to claims of lifetime vesting of retiree health benefits (CNH Industrial N.V.)
  • The scope of whistleblower protections under the Dodd-Frank Act (Digital Realty Trust)
  • Whether service advisors at automobile dealerships are exempt from overtime pay obligations under the Fair Labor Standards Act (Encino Motorcars)
  • The scope of Presidential powers under the Immigration and Nationality Act (Trump v. Hawaii)
  • The right of a business to refuse to provide services for certain customers or events based on religious beliefs (Masterpiece Cakeshop)
  • The legality of fair share fees paid to unions by public sector employees (Janus v. AFSCME)

Of additional importance, Justice Kennedy announced his retirement effective July 31, 2018, giving President Trump the opportunity to appoint a second nominee to the Court. On July 9, the President announced that his nominee to fill this vacancy will be current District of Columbia Court of Appeals Judge Brett Kavanaugh, thus initiating an appointment process that is widely anticipated to be acrimonious. If Judge Kavanaugh is ultimately confirmed, it is expected that his addition will move the Court to the right, as Justice Kennedy’s record on labor and employment cases was often more centrist.

Following is a summary of each decision and the likely impact on employers. In the final section of this summary, we also offer a glimpse of the labor and employment cases that the Court has agreed to hear next term. Please contact us for additional information or advice regarding the potential effect of these decisions on your workplace. Additionally, we are very pleased to announce that we will be hosting two upcoming webinars that delve into these topics in more detail. The first, on July 19, 2018, will examine the implications of the Janus ruling on public sector “fair share” union fees. The second, on July 26, 2018, will review the other major employment rulings from the 2017—2018 term and what employers can anticipate from the 2018—2019 term. You can view our past webinars here and here.

View the entire review of the Supreme Court’s 2017-2018 term.