Supreme Court Begins New Term

The United States Supreme Court began its new term on October 3rd with several cases already on its docket that could impact workforces. The federal government has been funded through mid-December thus avoiding a partial government shutdown that would have occurred on October 1st. The Department of Labor has expanded its registered apprenticeship program, OSHA has modified the Severe Violator Enforcement Program, and the EEOC has released new data.


Government Shutdown Avoided – Congress passed a continuing resolution that was signed by President Biden and averted a partial government shutdown that would have occurred on October 1st. The continuing resolution funds the federal government through December 16th. The failure to pass the twelve appropriation bills prior to the start of the new fiscal year is not surprising given that 1997 was the last time that Congress accomplished this and avoided the need for a continuing resolution.


Supreme Court Begins New Term – The first Monday of October marked the beginning of the US Supreme Court’s new term. While the court is still finalizing its docket for this term that runs through June 2023, there are several cases it has agreed to decide that could have workforce impact.


In the case of Helix Energy Solutions v. Michael Hewitt, the Supreme Court has agreed to review a Fair Labor Standards Act (FLSA) case that raises the issue of whether a highly compensated employee whose pay is computed on a daily basis is exempt from the FLSA. The United States Court of Appeals for the Fifth Circuit ruled for the employee, since while earning a certain level of income is required, “but insufficient on its own to avoid the overtime protection of the FLSA.” Oral argument in this case will be held on October 12th.


There are two cases, Students for Fair Admissions v. President and Fellows of Harvard and Students for Fair Admissions v. University of North Carolina that challenge the use of race as a factor in admissions to Harvard College and the University North Carolina. In both cases, the admissions policies of the universities are alleged to violate the Civil Rights Act by Harvard failing to admit Asian American students at the same rates as qualified students of other backgrounds and the University of North Carolina offering preferences to some groups to the detriment of white and Asian American applicants. The cases are scheduled for oral argument on October 31st.


In the 303 Creative v. Elenis case the court will decide whether a web designer in Colorado can, due to her religious beliefs, refuse to design wedding websites for same-sex couples. The Colorado Anti-Discrimination Act prohibits denying service to someone based on a number of factors including sexual orientation and the Supreme Court will decide whether the Colorado law violates the Free Speech Clause of the First Amendment. Oral argument has not yet been scheduled in this case.


Registered Apprenticeship Program Expands – The Department of Labor has selected the initial group of 207 apprenticeship ambassadors across multiple industries who will share their registered apprenticeship experience to promote and expand these programs across industries. The registered apprenticeship program according to the Department of Labor is designed to be an industry-driven, high-quality career pathway where employers can develop and prepare their future workforce, and individuals can obtain paid work experience, receive progressive wage increases, classroom instruction, and a portable, nationally recognized credential. 


“By partnering with employers and industry stakeholders, the Apprenticeship Ambassador Initiative has produced commitments to create nearly 500 new Registered Apprenticeships programs,” said Secretary of Labor Marty Walsh. The Apprenticeship Ambassadors have existing Registered Apprenticeship programs in over 40 in-demand industries and have committed to expand and diversify these programs over the next year by collectively: developing 460 new Registered Apprenticeship programs across their 40 industries, hiring over 10,000 new apprentices, and holding 5,000 outreach, promotional and training events to help other business, labor and education leaders launch similar programs.


OSHA Modifies Severe Violator Enforcement Program – The Occupational Safety and Health Administration (OSHA) has expanded the criteria for placement in its Severe Violator Enforcement Program. The new criteria is designed to strengthen enforcement and increase compliance with workplace standards. The program will continue to focus on repeat offenders in all industries.  "The Severe Violator Enforcement Program empowers OSHA to sharpen its focus on employers who – even after receiving citations for exposing workers to hazardous conditions and serious dangers – fail to mitigate these hazards," said Assistant Secretary for Occupational Safety and Health Doug Parker.

According to OSHA, the new criteria will include:

  • Placement in the program of employers who have been cited for at least two willful or repeated violations.
  • Follow-up or referral inspections made between one and two years after a final order.
  • Removal from the program three years after the date of receiving verification that the employer has addressed all hazards.
  • Employers could reduce the time spent in the program to two years if they consent to an enhanced settlement agreement.

    EEOC Releases New Data – The U.S. Equal Employment Opportunity Commission (EEOC) released new data on its website that includes the following reports: 2019 and 2020 EEO-1 for private employers with at least 100 employees and federal contractors with at least 50 employees, 2020 EEO-3 for referral local unions, 2021 EEO-4 for state and local governments, and 2020 EEO-5 for public elementary and secondary schools. The EEOC also announced that it has moved data tables to EEOC Explore where data about discrimination charges filed with the EEOC during fiscal years 1997 – 2021 can be accessed. 


    Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at