There’s no dissent here. Justice Scalia’s unexpected passing presents a potential blow to employers in two ways. First, the Supreme Court lost one of its most staunchly conservative justices, who often sided with management in key employment-related decisions. Second, his death has left the Supreme Court without a clear majority and no easy mechanism to reverse appellate court decisions favoring employees. With the 2016 elections nearly eight months away, and the likelihood of a replacement shrinking with each news cycle, 4-4 decisions are probably the new norm until a replacement is confirmed after the election.
So what can employers and practitioners expect? Planning long-term litigation strategy might be anyone’s guess because of the uncertainty surrounding when and who will replace Justice Scalia. Before Justice Scalia’s death, for instance, union and non-union employers grappling with the increasing number of employee-friendly holdings of the National Labor Relations Board’s (NLRB) were riding out the appellate process and banking on a Supreme Court that would overturn the decisions. But, if a more liberal justice is selected to replace Justice Scalia, this long-term strategy fails. Instead, the NLRB’s stance on hot button issues like joint employers and class action waivers may stand.
Justice Scalia’s death also has effects in the short term. Pending employment-related cases that may be impacted by the new 4-4 split include Friedrichs v. California Teachers Association, which will decide whether public sector unions can continue to require non-members to pay agency fees to the union. Friedrichs, a teacher, claimed the requirement to pay the agency fees violated her First Amendment right to free speech and freedom of association. The Ninth Circuit disagreed and ruled in favor of the union. It was widely assumed that the Supreme Court would overturn the decision. Without Scalia, however, a reversal is unlikely. Chances are the Court will issue a 4-4 decision.
Tyson Foods v. Bouaphakeo is also pending before the Supreme Court. There, Tyson Foods appealed an Eighth Circuit decision that held that courts could determine liability and damages in class actions certified under Rule 23 or the FLSA with statistical techniques that presume all class members are identical, despite the existence of differences amongst class members. During oral argument on the case, Justice Scalia’s comments suggested that he might have voted to overrule the Eighth Circuit’s decision. Now the Court’s ruling is far less predictable.
We will never know whether Justice Scalia’s vote in these cases would have been the deciding one. But we do know that employers took some comfort in recognizing that Justice Scalia could be counted on for a conservative, pro-business disposition. We also know that eventually, a new justice will take his or her place on the bench in Justice Scalia’s stead, settling some of the questions that confront the Court. For now, however, it appears that employers will need to live with the new level of uncertainty created by his passing.