by the editors of Federal Employment Law Insider

The U.S. Supreme Court has a number of major cases on its agenda this term, including three that could have a major impact on employment law as we know it. The three cases are on the Fair Labor Standards Act (FLSA), the National Labor Relations Act (NLRA), and last but certainly not least affirmative action.

Upcoming Cases

Helix Energy Solutions Group, Inc. v. Hewitt. On October 12, 2022, the Supreme Court heard oral argument on how the FLSA regulations define salaries in a case on whether an oil rig worker earning more than $200,000 a year is entitled to overtime pay because he was paid on a daily basis rather than on a “salaried” basis. The case comes down to the relationship between the regulations that govern the overtime pay exemptions for highly compensated executives. Under the regulations, day-rate pay does not amount to a salary, which the liberal justices focused on.

The conservative justices focused on the practical implications of paying overtime to individuals making over $100,000 per year, implying the employer would win if the case turned on the FLSA statute rather than the regulations even though that question was not before the Court. Even though this issue is not before the Court, the conservative justices may use this case to rein in agency regulations.

Glacier Northwest, Inc. v. Int’l Bhd. Of Teamsters Local Union No. 174. On October 3, 2022, the Court agreed to hear this case to determine whether there is an exemption to federal labor law preemption of state lawsuits if the employer makes common-law allegations of intentional destruction of property during a labor dispute. The right to strike is protected by the NLRA, but it requires striking workers to take reasonable precautions to protect their employers’ property from foreseeable hazards because of sudden work stoppages.

The union argued striking truck drivers unloaded cement trucks while the employer, suing in state court for intentional destruction of property, claimed the strikers allowed the concrete to harden in the trucks’ mixing drums. The Washington Supreme Court found the company’s claims were preempted under the Supreme Court’s 1959 decision in San Diego Building Trades Council v. Garmon. The court could use this case as an opportunity to limit or reverse Gannon’s preemption, which would return labor relations to the days before the NLRA was passed.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College; Students for Fair Admissions, Inc. v. University of North Carolina. In one of the most consequential cases to be decided this term, the Supreme Court will review the use of race in admissions at both private (Harvard) and public universities (UNC). The cases will reconsider the Supreme Court’s 2003 decision in Grutter v. Bollinger, which allowed universities to weigh race among other factors in admission, finding educational diversity is a valid goal. The cases claim Asians and whites are being discriminated against by using race as a factor in admission.

With the three new conservative justices joining Chief Justice Roberts as well as Justices Samuel Alito and Clarence Thomas, the use of race as a factor in college admissions is expected to be determined to be illegal in private colleges under Title IX and unconstitutional at public universities under the 14th Amendment. The real question is whether the decision will be broad enough to affect corporate diversity initiatives and affirmative action for federal contractors. This question has caused industry groups and dozens of companies to file amicus briefs asking the Court to uphold diversity in admissions.

Conclusion

The Court’s decisions in these three decisions could have major implications for employers as they could upend generations of established law. Rather than clarifying the law, the Court in these decisions is more likely to create more questions than it answers.