Look for employment law to be at the center of the storm in the next few years now that it’s clear the U.S. Supreme Court is willing to shake up precedent, attorneys who specialize in the field say.
The Dobbs abortion case is just the highest profile issue that general counsel have to think about since that decision raises liability issues for organizations that offer insurance covering the procedure or travel if it’s done in another state, Rebecca Bennett, an attorney with Ogletree Deakins, said in a webcast.
There are other big matters slated to come before the court in its next session, including cases that could pare back LGBTQ workplace protections, test the limits of the Fair Labor Standards Act and reopen the affirmative action debate.
“People are asking, if the Supreme Court can disregard or act differently from established precedent to overturn an established right, why wouldn’t they do it in other situations?” said Frederico Barrera, another attorney with the firm.
Top candidate
The case that’s talked about the most as the next matter to get a fresh look is the court’s 2020 ruling in Bostock vs. Clayton County that extended protection under federal anti-discrimination law to the LGBTQ+ community. In that case, the court decided against an employer that took issue with an employee promoting an LGBT softball league at work.
“In the same way [as Dobbs], there are some groups that are targeting the Bostock decision,” Barrera said.
Among other things, almost two dozen attorneys general have filed an action to stop the Equal Employment Opportunity Commission (EEOC) and the Department of Education from enforcing the Bostock decision in their states until a decision is made on a challenge the AGs filed to curb the agencies’ rules on the issue.
The AGs’ challenge involves agency rulemaking, so two other recent Supreme Court decisions could be a factor in how the court will look at the matter.
In American Hospital Assoc. vs. Becerra, the court curtailed the amount of discretion federal agencies have in fleshing out rules, and in West Virginia vs. EPA, the court curbed the environmental agency’s rulemaking, under the Clean Air Act, to require power plants to use the cleanest technology available.
In both cases, Barerra said, the rulings pare back what’s known as the Chevron Doctrine, which up until now has given agencies wide berth in how they interpret congressional intent when writing rules to flesh out laws.
“So, in the absence of it being super clear, an agency can’t just act and implement a regulation it thinks is appropriate,” Barerra said.
Policy debate
Those two rulings impact agency rulemaking, so they involve the kind of inside-baseball issues that don’t go after a matter directly but that nonetheless can have a major impact on policy. In the EPA case, it curbs the agency's ability to push for the replacement of coal-fired plants with those that use solar or wind power even though coal emissions are a major contributor to poor air quality.
In a number of upcoming cases, the issue isn’t about rulemaking but the policy itself.
In Hewitt vs. Helix Energy, for example, the court will look at whether a supervisor at an oil and gas company who’s paid based on a daily rate is entitled to overtime pay even though he’s an exempt, salaried employee. That will open up debate over the limits of the Fair Labor Standards Act.
Another case, 303 Creative vs. Elenis, will test a state’s ability to legislate against discrimination by weighing in on Colorado’s authority to prohibit businesses from LGBTQ discrimination.
The court could even open up debate over affirmative action by looking at Students for Fair Admissions vs. Harvard, which gives the court a chance to re-think Grutter vs. Bollinger, the decision that confirmed it’s not discriminatory for schools to use admission standards for minorities that take into account the way they were held back for generations.
“There’s a lot to talk about,” Barerra said.
