The U.S. Supreme Court rulings released in June 2022 had a significant impact on employers, and employers are now considering implementing policies and practices in response to the rulings. Court decisions in Dobbs v. Jackson Women’s Health Organization and Kennedy v. Bremerton Sch. Dist. widely impacted employment in areas such as privacy, benefits, religious accommodations and gender discrimination.

Going forward, employers should be prepared to act quickly to comply with the law as the 6-3 Conservative majority on the Court is expected to continue to change the status quo.

The following outlines four cases with potential implications for employers at the upcoming October 2022 Supreme Court session.

Mallory v. Norfolk Southern Railway Co., No. 21-1168

Pleading scheduled: October 11, 2022

Question: Whether the Due Process Clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.

Background: Petitioner Robert Mallory is a resident of Virginia, a former employee of Norfolk Southern Railway, a company based in Virginia. Mallory claimed that occupational exposure to carcinogens caused him to develop colon cancer. Mallory sued Norfolk in Pennsylvania Superior Court, but he did not allege that any of the exposures occurred in Pennsylvania. Norfolk filed objections, arguing that the court lacked personal jurisdiction. Pennsylvania law provides that a foreign company that registers to do business in the Commonwealth, as Norfolk has done, allows the courts of Pennsylvania to exercise personal jurisdiction over the company. The Pennsylvania Supreme Court, however, found this “consent-by-record system” to be inconsistent with due process and upheld the lower court’s dismissal of Mallory’s suit for want of jurisdiction.

Impact on employers: If the Supreme Court agrees with Mallory that a company that registers to do business in a state voluntarily consents to personal jurisdiction in that state, employees could sue an employer in any which state where the employer is merely registered to do business, whether or not the employer has continuous and systematic ties to the state.

Students for Fair Admissions, Inc. vs. President and Harvard College Scholars, No. 20-1199; and Students for Fair Admissions, Inc. v. University of North Carolina#21-707 (consolidated)

Expected oral argument: to be determined

Question: (1) Should the Supreme Court overturn the decision Grumble against Bollinger and argue that higher education institutions cannot use race as an admissions factor; (2) whether Harvard College violates Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race, and rejecting alternatives viable race-neutral; and (3) whether a university can reject a racially neutral alternative because it would change the composition of the student body, without proving that the alternative would result in a dramatic sacrifice in academic quality or educational benefits from the overall diversity of the student body.

Background: Students for Fair Admissions, Inc. (SFFA) is a conservative activist organization involved in affirmative action litigation. The two cases pending before the Court challenge admissions practices at Harvard University and the University of North Carolina-Chapel Hill (UNC). In Harvard case, SFFA argues University’s admissions policy discriminates against Asian Americans and violates Title VI of the federal Civil Rights Act, which prohibits racial discrimination by entities receiving federal funding. In the UNC case, the SFFA says the university’s admissions process violates Title VI and the Equal Protection Clause of the Constitution. In challenging these policies, the SFFA asks the Court to strike down Grumble against Bollingerwho felt that a “race-sensitive” admissions program that viewed race as a single factor and gave individual consideration to each applicant was narrowly enough tailored to survive rigorous scrutiny.

Impact on employers: if the Supreme Court overturns grutter and invalidates the Harvard and UNC admissions programs, higher education employers will need to review the admissions programs to determine if they need revision and train admissions staff accordingly. Such a decision could have a considerable impact and could encourage private sector employers to re-evaluate their diversity, equity and inclusion measures.

303 Creative LLC v. ElenisNo. 21-476

Expected oral argument: to be determined

Issue: Does enforcing a public housing law to prohibit a business from advertising its intention to deny service to LGBTQ+ customers violate the First Amendment’s free speech clause?

Background: Lorie Smith brought the underlying lawsuit on behalf of her graphic design company, 303 Creative LLC. Smith is looking to expand her business and start designing websites for weddings. However, Smith opposes same-sex marriage on religious grounds. His lawsuit challenges a Colorado law prohibiting businesses open to the public from discriminating against LGBTQ+ customers or advertising their intention to do so. The United States Court of Appeals for the 10^e Circuit found that the Colorado law was sufficiently narrowly tailored to the state’s interest in ensuring LGBTQ+ customers had access to 303’s unique services and, therefore, did not violate Smith’s First Amendment rights.

Impact on employers: A ruling in favor of 303 would invalidate Colorado’s law prohibiting discrimination against LGBTQ+ customers, as well as any other state law offering similar protections, granting broad discretion to a company to refuse services to customers based on the religious beliefs of the owners or managers of the business. Employers who provide services to the public will need to carefully consider the economic, social and reputational impact of allowing employees to deny services to LGBTQ+ people if such conduct is no longer prohibited by law.

Helix Energy Solutions Group, Inc. v. HewittNo. 21-984

Pleading: October 12, 2022

Issue: Is a supervisor earning more than $200,000 a year entitled to overtime pay because the stand-alone regulatory exemption set forth in 29 CFR § 541.601 remains subject to the detailed requirements of 29 CFR § 541.604 when he This is to determine whether highly paid supervisors are exempt from the Fair Labor Standards Act’s overtime pay requirements.

Background: Michael Hewitt held a supervisory position on an offshore oil and gas platform and was paid bi-weekly at a daily rate. Helix Energy Solutions Group, Inc. terminated Hewitt’s employment, and Hewitt then filed a putative class action lawsuit seeking retroactive overtime pay. Hewitt argued that his salary was calculated on a daily basis and therefore he was a non-exempt employee and entitled to overtime pay. Helix argued that Hewitt was exempt as a “bona fide executive, administrative or professional” and “highly paid” employee. The United States Court of Appeals for the Fifth Circuit reversed the lower court’s decision, finding that Hewitt was not exempt because he was a salaried employee.

Impact on employers: If the Court agrees with the Fifth Circuit’s analysis that daily wages are not equivalent to wages, regardless of the employee’s level of compensation, employers will face increased liability for non-payment of overtime. Employers whose highly paid employees are paid daily should consider reviewing their compensation practices.

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While it is impossible to predict precisely how the Supreme Court will rule on these four cases, employers should review their policies and practices to ensure they comply with applicable law and remain flexible in the event that the decision of the Court would deviate considerably from the status quo.