With the recent death of Supreme Court Associate justice Antonin Scalia, the highest court has lost its most staunch conservative voice.  His absence will likely impact the outcome of pending cases, including several employment law cases.

There are several labor and employment cases that remain ripe for a decision before this new Court. Any opinion that Justice Scalia voted on but had not formally released as of his death is void and must be reconsidered. The remaining members of the court will be tasked with reconsidering those cases, and entering a new era (at least at the outset) of potential deadlock on galvanizing issues.  These likely 4-4 decisions, could result in the lower court’s decision standing. Or, if it chooses to follow historical precedent, the Court could order the cases reargued when a new justice is confirmed.  Of course, if the vote was not a “tie,” then the decisions will be issued this Term. 

Here is a look at several cases the Court has in store in the employment and labor context: 

• Tyson Foods v. Bouaphakeo. Oral argument was already heard in this case, which involves whether differences among individual class members may be ignored and a class certified under Federal Rule of Civil Procedure 23(b)(3) (or a collective action certified under the Fair Labor Standards Act)  when statistical modeling is used that presumes all members are alike, or where the class contains hundreds of members that were not injured or have no legal right to damages.  Tyson is attempting to overturn a verdict of nearly $6 million in damages awarded to workers in a pork processing plant in Iowa, filed by a group of six plaintiffs on behalf of a class of current and former hourly workers. With Justices Kennedy and Kagan leading the discussion during oral argument, the outcome may not turn on a missing Justice Scalia vote.  

• Friedrichs v. California Teachers Association. More recently the Court heard argument on whether public employees who do not join a union can be required to pay an “agency” or “fair share” fee to cover costs that the union incurs, for example, for collective bargaining. This has been the law since the Court last ruled on the issue in its 1977 decision in Abood v. Detroit Board of Education finding such fees permissible. After oral argument, public employee unions were feeling nervous – the Court’s more conservative justices had appeared ready to overrule the Court’s Abood decision.

• Green v. Brennan. The question in this case is straight forward: whether under federal employment discrimination law the filing period for a constructive discharge claim begins to run when an employee resigns – which has been held by five circuits – or at the time of an employer’s last alleged discriminatory act that gave rise to the resignation – which three circuits have held. Following oral argument some found the Court’s focus to have shifted to what qualifies as a resignation, which is an answer the Court is expected to provide in resolving the circuit split.

• Gobeille v. Liberty Mutual Insurance Company.  Following oral argument in this case the consensus was there would not be a unanimous opinion from the Court. The case presents a question of preemption under the Employee Retirement Income Security Act of 1973 (ERISA), but the focus of oral argument was on the Affordable Care Act. The Second Circuit invalidated Vermont’s all-payer database as preempted by ERISA. Now the question before the Court is whether ERISA preempts state statutes that provide for “all payer” health care databases which are “designed to provide comprehensive state-level information about the distribution of health care services provided in the state and the costs of providing them.”

• Spokeo v. Robins. This case involves a Virginia man who alleges that the internet “people search engine” published inaccurate information about him. The question is whether Spokeo having violated the Fair Credit Reporting Act, without more, gives a legal right (standing) to sue. Here again the Court was expected to be closely divided.

There are additional cases that have yet to be heard by the Court but are on the docket this spring.  CRST Van Expedited v. EEOC involves the EEOC’s conciliation obligations, and is a closely watched case because of the largest fee sanction award that has ever been issued against the Commission in favor of an employer, at approximately $4.7 million.  Zubik v. Burwell is expected to see a split decision, as it addresses whether the government places an undue burden on religious nonprofits by requiring contraceptive-coverage.  Finally, not yet set for argument, MHN Government Services v. Zaborowski involves California’s arbitration-only severability rule and whether it is preempted by the Federal Arbitration Act.