The United States Supreme Court began its new term with cases concerning the Fair Labor Standards Act (FLSA) and the Americans with Disabilities Act (ADA) on its docket. The federal government is funded until December 20^th when additional action will need to be taken to avoid a partial government shutdown. The Department of Labor (DOL) released an artificial intelligence and inclusive hiring framework and published a job accommodation tool.

Supreme Court Returns – October 7^th marked the beginning of the new term for the United States Supreme Court. The court begins its session on the first Monday of October and the session usually runs until the end of June. While the Supreme Court will be adding cases to its docket, there are currently two cases set for review involving workforce issues concerning the Fair Labor Standards Act (FLSA) and the Americans with Disabilities Act (ADA).

The FLSA case of Carrera v. E.M.D. Sales, Inc. concerns the burden of proof that an employer needs to establish to prevail in a challenge as to whether employees are exempt as working in outside sales. There is currently a split among the federal appellate courts as to whether the proper standard that employers need to meet to show that employees are properly classified as working in outside sales is clear and convincing evidence or a preponderance of the evidence. In this case, the Fourth Circuit decided that clear and convincing evidence was the standard to be applied. This case is scheduled for oral argument on November 5^th.

The FLSA exempts those working in outside sales from the minimum wage and overtime requirements. The Department of Labor (DOL) regulation defines those working in outside sales as employees whose main duty is making sales and they “customarily and regularly” work away from the employer’s place of business in performing their primary duty. The plaintiffs worked as sales representatives for a company that distributed food products to grocery stores in the Washington, DC area. The plaintiffs were assigned a route of stores, and their tasks included restocking the shelves, replenishing depleted products, and removing damaged and expired items, which they described as inventory management. They also were responsible for submitting orders for additional products. They brought this lawsuit claiming that they work about 60 hours a week and are owed overtime compensation.

In finding for the plaintiffs, the District Court and the Fourth Circuit required the employer to prove the plaintiffs were exempt using the clear and convincing evidentiary standard. This standard requires employers to show it is highly and substantially more probable to be true than not. This is a more challenging standard for employers than the preponderance of evidence standard under which employers must show that it is more likely than not that an employee is exempt.

In the case of Stanley v. City of Sanford, Florida the Supreme Court will decide if a former employee can sue under the ADA for discrimination in the post-employment distribution of fringe benefits. The Eleventh Circuit Court of Appeals ruled that “because Stanley cannot establish that the City committed any discriminatory acts against her while she could perform the essential functions of a job that she held or desired to hold, her Title I [of the ADA] claim fails.”

Karyn Stanley worked as a firefighter for the City of Sanford, Florida, for about fifteen years until she was diagnosed with Parkinson's disease. Although she managed to continue working as a firefighter for about two more years, her disease left her incapable of performing her job resulting in her taking disability retirement in 2018. When she first joined the fire department, employees retiring for disability reasons received free health insurance until the age of 65. She was not aware that in 2003, while she was an employee, the city changed its benefits plan so that disability retirees would receive the health insurance subsidy for only twenty-four months. She brought a lawsuit contending that the decision to reduce the health insurance subsidy was discriminatory against her as a disabled retiree in violation of the ADA.

The 11^th Circuit’s decision joins with three other appellate courts in finding that the ADA only prohibits discrimination against employees and applicants, while two other appellate courts have ruled that the ADA’s antidiscrimination provision is ambiguous and ruled in favor of former employees. No date has been set yet for oral argument.

Federal Government Funded Temporarily – Before adjourning until after the election, Congress passed a continuing resolution that was signed by President Biden and will fund the government until December 20^th. The enactment of the continuing resolution avoided a partial government shutdown that would have occurred on October 1^st when the new federal fiscal year began.

In addition to funding the federal government, Congress will be faced with the end of the  suspension of the debt ceiling that will occur on January 1, 2025. While the Treasury Department can use “extraordinary measures” to continue to meet the federal government's obligations for a few months, the next Congress will need to either increase the debt limit or suspend it to avoid having the federal government default on its obligations.

DOL Releases AI & Inclusive Hiring Framework – The Department of Labor (DOL) published the AI & Inclusive Hiring Framework tool that is designed to “support the inclusive use of artificial intelligence in employers’ hiring technology and increase benefits to disabled workers.” The framework was published by the Partnership on Employment and Accessible Technology (PEAT), which is funded by DOL’s Office of Disability Employment Policy.

The framework provides guidance for employers, job seekers, and workers to increase benefits and better manage risks when using AI hiring technology. It’s based on practices from the National Institute of Standards and Technology (NIST) AI Risk Management Framework. The framework should assist employers by reducing their risks of “creating unintentional forms of discrimination and barriers to accessibility as they implement AI hiring technology.” The framework includes ten focus areas such as identifying legal requirements, establishing staff roles, inventorying technology, working with vendors, assessing impacts, providing accommodations, using artificial intelligence that can be explained, ensuring human oversight, managing incidents, and monitoring regularly. According to DOL, this initiative aligns with the administration’s “commitment to prevent AI-powered employment tools from hindering U.S. workers’ employment prospects.” 

Job Accommodation Tool Available – The Department of Labor (DOL) released a new resource, the Situations and Solutions Finder that provides examples of workplace accommodations that have been shared by users of the Job Accommodation Network (JAN), which is provided by DOL’s Office of Disability Employment Policy.  There are over 700 accommodation ideas for employers and workers with disabilities that have been submitted. “Accommodations are at the heart of the Americans with Disabilities Act, and they’re about maximizing productivity for workers with disabilities…” said Assistant Secretary for Disability Employment Policy Taryn M. Williams. A survey of data provided by employers from 2019 – 2024 showed that almost half of reported accommodations for workers with disabilities were made at no cost and where a one-time expense was incurred, the median amount was $300.

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 was an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.