This Littler Lightbulb highlights some recent labor and employment law developments at the U.S. Supreme Court and federal courts of appeal.

• At the Supreme Court. On October 3, the Justices agreed to hear In re Grand Jury, another significant case that may impact employers.  At issue is the standard that governs the attorney-client privilege in “dual-purpose” communications, which are communications made for the purpose of both legal and nonlegal advice.  This case could have an effect on the attorney-client privilege as to communications made in internal investigations and the standard attorneys should use in conducting the same in the future.

The appellate courts are split on the standard that applies. In the case before the Supreme Court, the Ninth Circuit joined the Second and Fifth Circuits in adopting the “primary purpose” test. Under that test, it is up to the court to determine whether the primary purpose of the communication is to provide legal advice. If it is, the attorney-client privilege protects the communication from disclosure. If not, the communication is not protected by the privilege.

Notably, Justice Brett Kavanaugh rejected the primary purpose test when he was a judge on the U.S. Court of Appeals for the D.C. Circuit.  In a 2014 D.C. Circuit Court decision, he stated that if just one of the significant purposes of an attorney-client communication is to obtain or provide legal advice, the privilege applies.  Though the differences between the two standards seem to be close, the D.C. Circuit’s formulation of the privilege has been found to be more expansive.  Briefs from legal and business organizations filed in the case have urged the Supreme Court to adopt the D.C. Circuit’s significant purpose test. They argue that the primary purpose test creates uncertainty regarding the confidentiality of attorney-client communications and fails to reflect the modern role that lawyers play in advising clients on overlapping legal and business issues.

• Time Spent Booting Up Computers. On October 24, the U.S. Court of Appeals for the Ninth Circuit issued a decision in another case that has direct employer impact. In Cadena v. Customer Connexx LLC, No. 21-16522 (9th Cir. 2022), the court held that the time call center employees spent booting up their computers was compensable under the Fair Labor Standards Act (FLSA). The decision in the case is consistent with that in Peterson v. Nelnet Diversified Solutions, LLC, 15 F.4th 1033 (10th Cir. 2021), in which the Tenth Circuit also held that time call center representatives spent booting up computers was compensable.  In both cases the appellate courts found that having a functioning computer was “integrally and indispensably” connected to the employees’ principal activities of receiving calls and interacting with customers over the phone.

• Exemption of Delivery Drivers from Arbitration. Whether delivery drivers are exempt from arbitration is now before the First and Second Circuits.  In both Canales v. LePage Bakeries Park Street., LLC, 22-1268 (1st Cir.) and Bissonnette v. LePage Bakeries Park St., LLC, 49 F.4th 655 (2d Cir. 2022), bakery delivery drivers are arguing they are transportation workers entitled to exemption from arbitration under the Federal Arbitration Act (FAA). In Canales, the employer is asking the First Circuit to reverse the district court’s decision that the drivers are transportation workers exempt from the FAA.  In Bissonnette it is the delivery drivers who have asked for a full Second Circuit panel to reverse its ruling that, even though they drive trucks, the drivers are in the bakery industry, not the transportation industry. The drivers filed a Petition for Rehearing, en banc on October 12, 2022.

We’ll be keeping track of these decisions and provide updates on significant developments.