Littler Lightbulb ' October Employment Appellate Roundup

• Published date: 06 November 2023
• Subject Matter: Employment and HR, Contract of Employment, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation
• Law Firm: Littler Mendelson
• Author: Mr John H. Adams, Jr.

This Littler Lightbulb highlights some of the more significant employment law developments at the U.S. Supreme Court and federal courts of appeal in the last month.

At the Supreme Court

• Three cases pending before the Supreme Court with significant workplace implications.

In Muldrow v. City of St. Louis, discussed in the July Appellate Roundup, the Court will decide

The issue in Murray v. UBS Securities, LLC, is whether a whistleblower must prove an employer acted with "retaliatory intent" in a claim for adverse employment action under the Sarbanes Oxley Act (SOX). The plaintiff in the case sued UBS Securities, alleging the company terminated his employment in violation of SOX because he reported alleged fraud. A jury awarded the plaintiff damages and the Second Circuit reversed, concluding that a whistleblower must prove the employer acted with retaliatory intent to prevail in a SOX action. The decision created a split with the Fourth, Fifth, Ninth, and Tenth Circuits on a whistleblower's burden of proof under SOX. The Supreme Court heard oral argument in the case on October 10, 2023, and its decision will be significant because it may impact the burden of proof under whistleblower statutes in other industries as well as under SOX.

Another Second Circuit decision the Supreme Court will review is Bissonnette v. LePage Bakeries Park St., LLC, discussed in the February Appellate Roundup, in which the Second Circuit rejected claims by delivery drivers that they are exempt from arbitration under the Federal Arbitration Act (FAA). The issue the Supreme Court will address is whether the FAA's exemption for employment contracts of workers engaged in foreign or interstate commerce applies to any worker who is "actively engaged" in the interstate transportation of goods, or only to those in the transportation industry. The decision in the case will be important for employers seeking to arbitrate disputes with delivery drivers.

In the Federal Appellate Courts

• Second Circuit Pleading Standard for FLSA Overtime Claims. The plaintiffs in Herrera v. Commes Des Garcons et al., No. 22-1962-cv (2d Cir. Oct. 16, 2023) who were employed as "Assistant Floor Manager," "Floor Manager," or "Sales Manager" at a New York City retailer, claimed their employer misclassified them as exempt managerial employees and failed to pay them overtime required under the Fair Labor Standards Act (FLSA). The federal district court dismissed the Plaintiffs' FLSA claims for failure to allege...