Stuart Gerson Quoted in “4 Employment Issues in Play for a More Conservative Court”


Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, was quoted in Law360, in “4 Employment Issues in Play for a More Conservative Court,” by Braden Campbell. (Read the full version – subscription required.)

Following is an excerpt:

Justice Ruth Bader Ginsburg’s death gives President Donald Trump a chance to expand the U.S. Supreme Court’s conservative majority to six, raising employers’ chances of winning business-friendly rulings on joint employment, labor rights and other hot-button issues.

The long-standing conservative majority has already been a friend to business, recently blessing employers’ use of arbitration agreements that force workers to forego their court rights and barring public-sector unions from extracting fees from dissidents. If the Senate confirms another conservative jurist to the bench, workers will have an even tougher time earning the high court’s favor …

Who Is an Employee?

Few employment law issues have captured as much attention in recent years as the debate over how to classify so-called gig workers under wage and other laws. As this battle continues to rage in the lower courts, a bolstered conservative majority could soon step in.

“The place where Justice Ginsburg’s untimely death and departure from the court and likely replacement with a different sort of justice [will have the biggest impact] … is going to come in the gig economy area,” said Stuart Gerson, a member at management-side employment law firm Epstein Becker Green.

The Fair Labor Standards Act, Title VII of the Civil Rights Act and other federal employment laws condition their protections on employee status: Workers classified as employees enjoy overtime pay, anti-discrimination measures and other rights, and workers classified as independent contractors do not.

Workers’ advocates and progressive state attorneys have lately sought to extend these rights to the gig economy, where workers are generally treated as independent contractors. Private attorneys have sued on behalf of workers for unpaid wages and overtime under federal law with mixed success, and California and Massachusetts prosecutors have sought to make businesses reclassify workers.