Jonathan Harkavy Presents 2008-09 Annual Supreme Court Review of Employment Law Cases

At the 25th Annual North Carolina/South Carolina Labor and Employment Law CLE held in Charleston, South Carolina, Jonathan Harkavy will present his 2008-09 annual review of the Supreme Court's employment law cases. His paper is entitled Supreme Court of the United States Employment Law Commentary, 2008 Term.

Summary: The 2008 Term of the Supreme Court of the United States, forged in volatile economic times and framed on a changing political palette, not only reaffirmed the Court's interest in employment-related cases, but also revealed a growing institutional confidence in shaping employment law. While a fully coherent approach to employment disputes continued to elude the Court, it was not for lack of trying, as the Justices decided nearly a dozen cases treating some aspect of the employment relationship. Notably, these cases, many of which were determined by closely divided votes, mirror a deep philosophical fracture portrayed more broadly across the spectrum of the Court's work. All in all, therefore, the 2008 Term was one of high interest for both the employment bar and the general public, as well as one of considerable consequence for workers, employers, and labor organizations.

This paper first comments briefly on the scope of the Court's work during the 2008 Term and the place of employment law in it. Next, the major portion of the paper is devoted to the term's decisions arranged by broad topics. The italicized paragraphs preceding and
following the cases offer my personal take on the decisions and their likely impact on employees, employers, and labor unions. Following that review of decisions is a listing of the Court's grants of certiorari in employment-related cases to be argued and decided in the 2009
Term. The paper concludes with some personal observations about the doctrine and direction of the Court's employment jurisprudence and the changing character of the employment relationship itself.