The Rocky Mountain Employer


Labor and Employment Law Updates

U.S. Supreme Court to Rule on Important Employment Issues in 2018-2019 Term

The United States Supreme Court’s 2018-2019 session is underway and the employment cases on its docket may have a significant impact on employers, particularly regarding employment arbitration agreements. The following is a brief overview of cases and petitions that will affect employers:

Arbitration – Cases

Last May, the Supreme Court upheld the use of class-action waivers in employment arbitration agreements,FN1 and in two cases this term, the Supreme Court will consider, in the absence of explicit waiver language, whether an arbitration agreement can serve to waive class-actions FN2 and, whether arbitration agreements may be enforced against independent contractor, long-haul truck drivers, in light of the fact that the Federal Arbitration Act (“FAA”) does not apply to “contracts of employment of transportation workers.”FN3

 Age Discrimination Claims Affecting Public Employers

On October 1, 2018, the Supreme Court heard argument in Mount Lemmon Fire District v. Guido, which focuses on whether the Age Discrimination in Employment Act’s (“ADEA”) 20-employee minimum threshold applies to public employers.FN4 The case reached the high Court after the federal appellate courts disagreed on whether the ADEA private employer, 20-employee threshold rule applied to public employers.

 Petitions Not Yet Granted

Other petitions under consideration ask the Court to determine the long-awaited question of whether Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination based on sexual orientation or gender identity; and whether an employer may consider salary history as a “factor other than sex” when making pay determinations under the Equal Pay Act (“EPA”).FN5 If the Supreme Court decides to take up these issue this term, the decisions will have a significant impact on employers nationwide.

Campbell Litigation will provide updates of these and other cases.


FN1:   Epic Systems Corp. v. Lewis, --S. Ct. -- (2018), 2018 WL 2292444 (May 21, 2018). See for an analysis of that decision.

FN2:   Lamps Plus, Inc. v. Varela, No. 17-988 (cert. granted April 30, 2018), In Lamps Plus, the arbitration agreement stated that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings,” and the Ninth Circuit held that because the language was ambiguous and in light of California law allowing employees to bring class actions in arbitrations, the agreement did not have the effect of waiving class actions. Varela v. Lamps Plus, Inc., 701 F. App’x 670, 673 (9th Cir. 2017).

FN3:   New Prime Inc. v. Oliveira, No. 17-340 (argued October 3, 2018),; see 9 U.S.C.A. § 1 (West) (2018). In New Prime, the First Circuit held that a transportation-worker agreement that established an independent contractor relationship was an employment contract under the FAA. Oliveira v. New Prime, Inc., 857 F.3d 7 (1st Cir. 2017).

FN4:  See Mount Lemmon Fire District v. Guido, U.S., No. 17-587 (argued October 1, 2018),

FN5:   See Altitude Express Inc. v. Zarda, No. 17-1623 (petition filed May 29, 2018); Bostock v. Clayton County, No. 17-1618 (petition filed May 25, 2018 ) (sexual orientation); R.G. & G.R. Harris Funeral Homes Inc. v. E.E.O.C., No. 18-107 (Petition filed July 20, 2018) (gender identity). See Elizabeth Slattery, Overview of the Supreme Court’s 2018-2019 Term, The Heritage Foundation (Sep. 18, 2018),