Tag Archives: Supreme Court

Employee Rights Hurt by Supreme Court Decisions

United States Supreme Court

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Employee rights in the workplace took a step backward with the Vance and Nassar decisions made by the U.S. Supreme Court. So what does this mean in concrete terms for employees?

Vance: The main takeaway from Vance is that employees must tell upper management and human resources about workplace harassment. This has been federal law in the Court of Appeals for the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and the 8th Circuit (Nebraska, Iowa, North Dakota, South Dakota, Minnesota, Missouri and Arkansas). In order to sustain a workplace harassment claim under federal law, employees must now be able to show that management knew about harassment and that management failed to take effective action against the harassment.

Nassar: Nassar made it more difficult to prove retaliation under federal law. In the 5-4 majority decision written by Justice Samuel Alito, the court wrote that it was concerned about the increase in retaliation claims filed in the EEOC and the potential for “frivolous litigation.” The effect of this case is that even more retaliation cases will be decided by judges under summary judgment instead of being decided by juries.

However, just because it is harder to bring a discrimination or retaliation case under federal law doesn’t mean that an employee can’t bring a case under state law that could be more favorable to the employee. But employees pursuing wrongful termination cases in state court should be aware that state court judges oftentimes follow federal court judges in interpreting state fair-employment laws.  State court judges might find the Supreme Court’s concerns about “frivolous” retaliation suits to be well founded. 

I think Justice Alito was off base in his concerns about “frivolous” retaliation where employees who are about to get fired file complaints in order to preserve their job or set themselves up for a wrongful termination lawsuit. Any competent employee-rights attorney knows that retaliation suits are difficult to win. I turn down about 9 out of 10 people who call my office who claim they were wrongfully terminated. Wrongful termination suits are costly and time consuming. I am not going to invest time and money in a suit where I will likely get dismissed and possibly face financial sanctions under court rules and also possibly be opened up to paying costs to the prevailing employer under federal fair-employment law. I am doubly suspicious of employees who are fired shortly after they file discrimination or other claims. Employers know that if they fire someone after filing some sort of complaint that it appears to look bad. But courts will uphold that reason if they had a legitimate reason to fire the employee. In other words, the employee who knows they are skating on thin ice and then files a complaint is going to lose a wrongful termination case. The decision in Nassar won’t stop disgruntled employees from filing claims with fair-employment agencies, it will just make it more difficult for employees with legitimate wrongful termination claims to obtain justice.

Asbestos, Railroads and The US Supreme Court

Railroad workers install deadly asbestos fiber.

Today’s post comes to us from my colleague Jon Gelman of New Jersey.

For decades railroad equipment, including engines, were heavily insulated with asbestos fiber, a known carcinogen and causally related to mesothelioma, a rare and fatal cancer. Many lawsuits have been filed by victims and their families to recover benefits against the suppliers, manufacturers and distributors of asbestos fiber. In November, The US Supreme Court heard oral argument to determine whether state laws were preempted under Federal law and that state laws were not applicable in judging the lawsuits.

The initial claims for asbestos related diseases were filed as workers’ compensation claims in the United States. Soon it was revealed that the suppliers, distributors and health research (trade) organizations were concealing information to the workers as to the deadly dangers of asbestos fiber. As asbestos related disease, including mesothelioma, became epidemic, tens of thousands of civil claims were filed. Continue reading

If Obama’s Affordable Care Act is upheld, it won’t be the first time government has forced companies to provide insurance


Back in 1917 the Supreme Court ruled that Workers' Compensation should protect workers like these men.

Last week we posted on how Obama’s Affordable Care Act, which would require that every American must have health insurance, has been struck down by a U.S. Circuit Court. However, the Obama administration and 26 states filed appeals against this ruling, and the Supreme Court is widely expected to rule on the appeal this fall.

The fact of the matter is, if Obama’s Affordable Care Act is upheld, it wouldn’t be the first time that the government has forced companies to provide insurance for people. The constitutionality of mandatory insurance has been challenged in courts and upheld at the highest level.

The argument that state-mandated insurance for injured workers was unconstitutional was made after an employee was killed in 1914. The workers’ compensation system, in exchange for requiring employers to compensate employees for work-related injuries, exempts employers from liability beyond the limits of the insurance. Employers in 1914 said the United States Constitution prohibited state governments from forcing employers to buy such insurance. Some even called it socialism. Continue reading

Will the Supreme Court’s Decision on Obama's Healthcare Plan be the End of Workers' Compensation?

On September 28th, 2011, the Obama administration and 26 states filed appeals to a lower court ruling that struck down a provision of the Affordable Care Act (the Obama health care law) that required every American to have health insurance.

The Supreme Court is widely expected to rule on the appeal this fall, and its ruling may put the workers’ compensation system in jeopardy.

Dismantling the workers’ compensation system would make it much more difficult for the vast majority of workers with injuries to receive compensation. 

The workers’ compensation system is a mandatory insurance system which makes receiving compensation for a work-related injury simpler, faster and more certain than relying on the courts. Workers’ compensation makes it easier for all workers to get money for treatment of work-related injuries, since they don’t have to go to court to get it. It also limits the amount of money that the most seriously injured workers can receive.

If the Supreme Court decides that it is unconstitutional for the government to force all Americans to purchase health insurance, Continue reading