Service advisors' FLSA claims return to the Supreme Court

It's a simple question: Does 29 U.S.C. §213(b)(10)(A) exempt service advisors at car dealerships from the Fair Labor Standards Act’s overtime-pay requirements. The 9th Circuit [Opinion] holds that service advisors are non-exempt. Other courts are going the other direction.

The case was at the US Supreme Court in 2016 - Encino Motorcars, LLC v. Navarro (US Supreme Court 06/20/2016) [Opinion]. Then the big question was whether to defer to the Department of Labor's most recent flip-flop on the issue. The Court (all eight Justices) agreed that no deference was warranted as to the Department of Labor's most recent iteration of an interpretation of the Fair Labor Standards Act. But rather than giving us its interpretation of the statute, the Court (6-2) sent the case back to the 9th Circuit to do that work.

The 9th Circuit again found the service advisors are non-exempt, so here we are again.

We do have some clear hints from the last time this case was at the Supreme Court. Justices Thomas and Alito opined that service advisors are exempt. And Justices Ginsburg and Sotomayor provided some support for them being non-exempt. The others preferred to say nothing about the ultimate merits of the case. Thus, it looks like the Justices that need persuading are Chief Justice Roberts and Justices Kennedy, Breyer, Kagan, and Gorsuch.

I expect this case to be a nominee for the most boring case of the season.

[For a list of current employment law cases, see Supreme Court Watch.]