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April 22, 2016
The hugely respected Supreme Court Justice Antonin Scalia’s death has had massive implications for developments in employment law across America. As predictions about ongoing cases are made, ripples of uncertainty are being created throughout law firms across the country. Scalia acted as the embodiment of conservatism in the Supreme Court for three decades, and he was respected even by those who disagreed with him. His death will undoubtedly be accompanied by consequences for employees, employers and businesses.
Even as the memory of Scalia is being honored, legal and political factions are forming. A number of cases concerning employment law are currently progressing. Past cases judged by Scalia provide an insight into his approach to justice (as well as the gap his absence will leave in employment law). Just one example is the case of Employment Division, Department of Human Resources of Oregon v. Smith in 1990 in which the Supreme Court ruled on the use of the prohibited substance peyote in a religious ritual. The ruling held that the state was entitled to deny unemployment benefits to an individual dismissed from his workplace for violating the law. This case was influential because it supported employers’ right to fire employees for illegal act, even if they were done in a religious setting.
The passing of Scalia could change the direction of employment law in 2016 and beyond. Cases that have yet to be decided include a decision that will affect public sector unions. The ongoing case of Friedrichs v. California Teachers Association concerns the possible overturning of the former Supreme Court judgment in Abood v. Detroit Board of Education. Abood held that public employees who do not belong to unions could be obliged to pay for union charges. The complexities of this case are extensive. However, it suffices to summarize the case as a struggle between company owners and members of public unions. These public union members are concerned about their ability to speak out about improving working conditions and other benefits (such as the correct wage rates, benefits and issues like safety in the workplace).
In Green v Brennan, the issue is whether the period for a constructive discharge file claim starts to run on the date of the employee’s actual resignation or at the time of the employee’s last act of discrimination. No one can definitively say what Scalia’s judgment would have been, but given his conservative leanings and his judgement history, it is definitely possible to guess. Heffernan v. Patterson will affect freedoms of speech and association. This case will decide whether public employers may be able to take action against employees based on their speech and political affiliation. It goes right to the heart of the key principle of freedom of speech and association. The outcome’s impact on employment law is eagerly anticipated.