In today’s news and commentary, the Supreme Court hears oral argument in an FAA case; the NLRB rules that Cemex does not impose an enforceable deadline for requesting an election; and DOL proposes raising wage standards for H-1B workers.

Yesterday, the Supreme Court heard oral argument in Flowers Foods, Inc. v. Brock, a case about the Federal Arbitration Act’s (FAA) exception for transportation workers. As Andrew explained last month, the FAA carves out “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce”; this case focuses on whether that carveout applies to “last mile” drivers who are part of interstate supply chains but who do not themselves cross state lines during their deliveries. Several Justices asked questions about where to draw the boundaries of the exception, with particular concerns about applying it in the context of modern, complex supply chains. If the Court rules that “last mile” drivers are exempt, then those drivers could begin to bring class action suits for improved working conditions against Amazon Flex, Instacart, and other companies relying on gig drivers.

Meanwhile, the NLRB ruled yesterday that its decision in Cemex did not create an enforceable deadline before which employers must request an election. Cemex held that when a union requests recognition based on support from a majority of the bargaining unit, the employer must either recognize the union or “promptly” file a petition for an election, with “promptly” normally meaning within two weeks. In St. John’s College, decided yesterday, the employer waited almost three months to file for an election, and the Regional Director dismissed the petition as untimely under Cemex. The NLRB reversed, stating that the two-week period is relevant to whether the employer will be liable for an unfair labor practice, but that an otherwise valid election petition may still proceed even if it is filed later. The decision might weaken Cemex as a constraint on employer delay tactics — but Cemex has also been subject to other challenges in the courts, indicating that the case might be on shaky footing more broadly.

Finally, the Department of Labor proposed a new rule today that would mandate higher wage standards for H-1B workers. The program’s wage standards are intended to keep foreign worker hiring from undercutting domestic wages, and the standards also effectively determine how expensive it is for companies to hire through these visas. If enacted, the higher wage requirements from this rule would disincentivize immigrant hiring — the same impulse motivated the Administration’s recent changes to the H-1B lottery and the attempt to add a $100,000 hiring fee to the program. Similar efforts during the first Trump Administration were tied up by legal challenges brought by business groups whose hiring was impacted; challenges to this rule may be likely as well.