Supreme Court: 2009-10 term begins

The Supreme Court opens its October 2009-10 term today, with rookie Justice Sonia Sotomayor on the bench and several labor and employment cases on the docket. First up: Mohawk Industries Inc v Carpenter (Dkt No 08-678). The Court will consider whether a party may immediately appeal a discovery order to disclose materials that are purportedly covered by the attorney-client privilege, in the case of an employee who was discharged when he refused to recant claims that the employer hired illegal aliens. The employee sought to compel information related to his interview with Mohawk's outside counsel during an internal investigation into a separate RICO class action, as well as information related to the decision to discharge him. The district court ordered Mohawk to provide the information, concluding the company had waived attorney-client privilege when it put the attorney's actions "in issue" in its response. The Eleventh Circuit dismissed Mohawk's interlocutory appeal on the discovery ruling for lack of jurisdiction.

On Wednesday, October 7, the Court hears oral argument in Union Pacific Railroad v B'hood of Locomotive Engineers (Dkt No 08-604). The High Court will consider the scope of federal court review of arbitration rulings under the Railway Labor Act—specifically, whether courts can set aside NRAB arbitration awards based on alleged due process violations. In the ruling below, 156 LC ¶11,053 (2008), the Seventh Circuit held the NRAB violated a union's due process rights when it created a new rule governing the submission of evidence.

Rounding out the docket. The Supreme Court has several other key labor and employment cases on its docket for the coming term (oral argument has not been scheduled):

• Conkright v Frommert (Dkt No 08-810), an ERISA case in which the court will consider whether a court should give deference to a plan administrator on the availability of remedies under a covered plan, and the amount of discretion a district court has in calculating remedies based on its reasonable interpretation of the plan.
• Granite Rock Co v Int'l B'hood of Teamsters (Dkt No 08-1214), an LMRA, Section 301 case regarding federal court jurisdiction over the question of whether a collective bargaining agreement had been formed. In the decision below, the Ninth Circuit (156 LC ¶11,110) held the question of contract formation was one for an arbitrator, unless there is a separate challenge to the arbitration provision in an underlying contract that is separate and distinct from a challenge to the contract itself.
• Lewis v City of Chicago (Dkt No 08-974). Turning once again to employment discrimination matters involving tests used to hire and promote firefighters, the Supreme Court granted certiorari in this case last week to address when the statute of limitations period begins where employers adopt an employment practice that discriminates against African Americans in violation of Title VII's disparate impact provision.