United States Supreme Court

US Employment Law: Recent Supreme Court Developments

By Narcisa Przulj and Zach Merkle, Sandberg Phoenix & von Gontard P.C.

As with most Supreme Court terms, the high court has handed down opinions with which all employment-law practitioners should be familiar. October Term 2018 has been a big one for arbitration provisions, which directly affect many employment contracts.

  • After New Prime Inc. v. Oliveira, No. 17-340, a trial court should determine whether the Federal Arbitration Act’s Section 1 exclusion for disputes involving the “contracts of employment” of certain transportation workers applies before ordering arbitration. This is important because a federal court – rather than the arbitrator – determines this threshold arbitrability question.
  • In Henry Schein Inc. v. Archer and White Sales Inc., No. 17-1272, the court rejected the “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator, not a court.
  • Lamps Plus Inc. v. Varela, No. 17-988, is a still-pending case that will determine whether the FAA forecloses a state-law interpretation of an arbitration agreement that would authorise class arbitration based on general language commonly used arbitration agreements.

In non-arbitration employment news, the Supreme Court decided a few other cases. Under Mount Lemmon Fire District v. Guido, No. 17-587, state and local governments are considered “covered employers” under the Age Discrimination in Employment Act (ADEA).

In BNSF Railway Company v. Loos, No. 17-1042, an employee of a railroad had taxable “compensation” under the Railroad Retirement Tax Act when the employee received payment for working time lost due to an on-the-job injury. Looking ahead to October Term 2019, while there are no employment-related grants of certiorari yet, the early prediction is that the court will resolve issues related to gender identity and sexual orientation under Title VII’s ban of discrimination on the basis of “sex”, an issue that has split lower courts recently.


Narcisa Przulj

Narcisa Przulj

Sandberg Phoenix & von Gontard P.C., Alton (IL), Carbondale (IL), Clayton (MO), Edwardsville (IL), O’Fallon (IL), Overland Park (KS), Saint Louis (MO), USA
T: +1 314 231 3332
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With more than 150 attorneys in offices in Missouri and Illinois, Sandberg Phoenix & von Gontard P.C. offers clients in more than 50 industry sectors throughout the Midwest and across the United States, a full range of more than 40 legal services. Committed to an extremely high level of client service, Sandberg Phoenix & von Gontard P.C. was one of the first firms in the US to offer clients a Service Guarantee, covering timely, responsive and cost-effective legal service.

Narcisa Przulj is a shareholder specialising in employment law. Her practice encompasses litigation, transactional work, and counselling, representing employers ranging from small businesses to Fortune 100 companies.
Zach Merkle

Zach Merkle

Sandberg Phoenix & von Gontard P.C., Alton (IL), Carbondale (IL), Clayton (MO), Edwardsville (IL), O’Fallon (IL), Overland Park (KS), Saint Louis (MO), USA
T: +1 314 231 3332
E: This email address is being protected from spambots. You need JavaScript enabled to view it.; W: www.sandbergphoenix.com

Zach Merkle is an associate in the firm’s Business Litigation practice group, and a member of the Employment Law team.


Published: Labour Law,  No. 06, Spring 2019 l Photo: Dave Newman - stock.adobe.com

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