Supreme Court Begins New Term with Few Employment Cases

The Supreme Court of the United States will begin its new term on October 3rd with a quiet slate of cases for employers. Among the few employment-related cases set for review include one involving whether the acting general counsel of the NLRB was validly appointed by President Obama under a federal vacancy statute (NLRB v. SW General, Inc.) and another involving the judicial standard of review for enforcing EEOC investigative subpoenas (McLane v. EEOC). Although these cases are not likely to set employers’ hearts afire, it is possible that the Court will add to its docket as it considers other pending petitions for review.

In terms of its composition, the Supreme Court will begin its new term as it ended its last one: with a vacancy. Although President Obama nominated Judge Merrick Garland from the D.C. Circuit Court of Appeals last March to replace Justice Scalia, the Senate has not acted on the nomination. As a result, the eight-member Court continues to risk deadlocking in some cases, as it did last term when considering the constitutionality of compulsory union dues in Friedrichs v. California Teachers Association. In that case – just as it does whenever it deadlocks – the Court affirmed the judgment below, which had held that mandatory “fair share” fees did not violate public employees’ First Amendment rights.

Whether the Court’s composition has played a role in its selection of cases this term is an open question. In this election year, it is also a question that is likely to persist until after November.

Maine Law Court Weighs In Again on Whistleblower Claims

The Maine Supreme Judicial Court, acting as the Law Court, recently issued a decision reiterating the scope of protected activity under the Maine Whistleblowers’ Protection Act.  The decision is a win for employers and clarifies that an employee’s subjective belief that there has been a violation of law is not enough to bring a report about the alleged violation within the protections of the WPA – the employee’s belief must also be objectively reasonable.

The issue in Galouch v. Department of Professional and Financial Regulation was whether reports made by a Maine Bureau of Insurance employee – Patricia Galouch – qualified as protected activity where the reports related to concerns Ms. Galouch had about a court reporter.  The court reporter was under contract with the Bureau to provide certain services, and Ms. Galouch believed the reporter had breached the terms of her service agreement.  Ms. Galouch believed these breaches violated certain rules governing the Bureau’s procurement of services, and she reported her concerns to her supervisor.  The supervisor directed Ms. Galouch to refer contract issues to the Bureau’s contract administrator and instructed her to not address the contract issues herself, as they fell outside her job responsibilities.  Ms. Galouch, however, continued to communicate with the court reporter directly. Soon thereafter, the court reporter terminated her contract with the Bureau and explained she could no longer tolerate Ms. Galouch’s behavior.  The Bureau placed Ms. Galouch on administrative leave while it investigated allegations that she had exceeded the authority of her position.  As a result of the investigation, which was subsequently expanded to include other performance issues, the Bureau terminated Ms. Galouch’s employment.

The key issue for the Law Court was whether Ms. Galouch’s report concerning the court reporter’s contract qualified as protected activity under the WPA.  More specifically, the issue was whether Ms. Galouch had “reasonable cause” to believe that the court reporter’s conduct was unlawful.  The Law Court found that even if Ms. Galouch subjectively believed the reporter’s conduct was unlawful, there was no evidence demonstrating that a reasonable person would have believed so.  While acknowledging that the WPA “does not require an employee be able to cite to a particular statute or rule that may have been violated,” the Law Court held that Ms. Galouch’s “subjective belief alone is insufficient to meet the WPA’s ‘reasonable cause’ requirement.”