On October 23rd, at the 31th Annual North Carolina/South Carolina Labor and Employment Law CLE held in Isle of Palms, SC, Mike Okun presented Jon Harkavy's 2013-2014 annual review of the Supreme Court’s employment law cases. Jon's paper is entitled “2015 Supreme Court Employment Law Commentary.”
Introduction: Appearances can, indeed, be deceiving: The October 2014 Term of the Supreme Court of the United States appeared more friendly to working people than a measured analysis of its decisions reveals. Despite the conventional wisdom that employees fared well this term, no simple tally of outcomes can mask the Roberts’ majority’s continuing agenda to promote employer prerogatives and forestall employee collective action, all in pursuit of its long-term love affair with regulatory laissez faire. A central purpose of this article, therefore, is to look beyond the box score to deeper currents in the Court’s employment jurisprudence to determine where this body of law is headed and what consequences flow from its direction.
That is a somewhat daunting task, as the Court’s employment opinions lurked in the shadows of this term’s monumental decisions involving individual dignity, healthcare and governmental structure. Yet, the 2014 Term’s employment opinions can clearly be seen to show how the Court, without much heed for Congress or the Executive Branch, is continuing to refine the relationship between capital (i.e., owners or managers) and labor (i.e., working people.)