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- 03.11.2025National Labor Relations Board Back to Quorum Strength as Member Wilcox Is Reinstated
In an emphatic decision, Federal Court Judge Beryl Howell of the District of Columbia District ordered President Trump to reinstate NLRB Member Gwynne A. Wilcox to her Board seat. The President fired Wilcox, asserting unitary power over employees in the executive branch. Rejecting this broad construction of executive authority, Judge Howell concluded that Congress meant for some federal employees to be beyond the President’s reach except in limited circumstances.
- 02.25.2025President Trump to Federal Agencies: “I’ve Got This”
President Trump’s February 18th Executive Order entitled, “Ensuring Accountability for All Agencies,” represents a sweeping effort to consolidate federal executive branch lawmaking power with the President. The Order’s purpose is to “ensure Presidential supervision and control of the entire executive branch.” Such control is inherent with cabinet-level agencies, but this Order would extend control explicitly to Independent Regulatory Agencies established by Congress. Agencies that ignore the directive to involve the White House in rulemaking could risk losing appropriations for certain activities.
- 02.21.2025Acting NLRB General Counsel Scraps Predecessor's Memos, Signals a New Direction
On Valentine’s Day, the Acting NLRB General Counsel, William B. Cowen, delivered a greeting card of sorts to his staff and the public signaling a new direction for the agency. Commenting that “the backlog of cases at the agency is no longer sustainable,” Cowen rescinded 31 memos by his predecessor Jennifer Abruzzo, some totally and others pending further guidance. Implicitly criticizing Abruzzo’s expansive view of federal labor Law, Cowen stated, “[I]f we attempt to accomplish everything, we risk accomplishing nothing.”
- 02.04.2025For Federal Contractors and Recipients of Federal Monies
As part of the Presidential Executive Order entitled “Ending Illegal Discrimination and Restoring Merit Based Opportunity,” federal agencies must advise every potential federal contractor and grant recipient that a material part of receiving federal money is a certification that the employer is compliant with anti-discrimination laws. The certification must include a statement that the employer does not operate any program promoting Diversity Equity and Inclusion (DEI) in a manner that violates anti-discrimination laws. Neither the Executive Orders nor any laws, rules, or regulations define when a DEI program violates the law.
- 01.27.2025Federal Contractors Get Relief from PLA and DEI Requirements
This past week, employers received two reprieves from mandatory conditions before winning federal contracts. On January 21, 2025, Federal Claims Court Judge Ryan T. Holte ruled that President Biden’s 2022 Executive Order that federal agencies choose only bidders that agree to enter into project labor agreements (PLAs) with unions for any federal construction contract over $35 million is unlawful. Judge Holt sided with the plaintiff Contractors in ruling that the Executive Order improperly drives up prices and contravenes other laws requiring full and open competition in contract procurement. In sum, he tossed the Order as being arbitrary and capricious.
- 01.07.2025From Backcourt To The Gridiron, Universities Oppose The NLRB’s Enforcement Position Regarding Their Athletes
On New Year’s Eve, the union attempting to organize Dartmouth College’s men’s basketball team dropped its NLRB case after winning a groundbreaking decision in February 2024 from a NLRB Regional Director who decided that the players were employees of the College, eligible to unionize, and ordered a secret-ballot election which the union won. However, Dartmouth appealed the Regional Director’s decision, including the decision to hold an election, to the Biden-appointed Board members of the NLRB, and the appeal was pending when the union dropped its case.
- 12.12.2024NLRB ALJs’ Job Protections in Jeopardy After District Court Ruling
On December 10, 2024, U.S. District Court Judge Trevor McFadden, sitting in the District of Columbia, ruled that the job protections afforded NLRB Administrative Law Judges (ALJs) are unconstitutional because they impede the President’s power to remove executive branch subordinates under Article II of the Constitution. This is the first decision to squarely address the protected status of NLRB ALJs after numerous claims nationally that the NLRB’s structure, including the status of Board members and ALJs, is unconstitutional. However, this decision, issued at the summary judgment stage, falls short of enjoining the NLRB from prosecuting unfair labor practice charges or pursuing remedies where the ALJ has found merit to unfair labor practice allegations. Nevertheless, this decision may be the first step toward narrowing the power of the NLRB’s judges to create law that conflicts with the will of the people and the labor relations agenda of the sitting President. VHS Acquisition Subsidiary No. 7 v. NLRB.
- 11.20.2024Not So Fast - Texas Court Derails DOL Rule Expanding Eligibility for Overtime Pay
On November 15, a U.S. District Court in Texas put the brakes on the Department of Labor’s April 2024 Rule designed to make more employees eligible for overtime pay under the Fair Labor Standards Act. State of Texas v. United States Department of Labor; Plano Chamber of Commerce v. United States Department of Labor.
- 10.30.20242024 Election: How Labor Law Could Shift Under Trump or Harris Leadership
The Presidential Election is upon us with many indicators predicting a close election. The two candidates and their respective party platforms offer opposing views on many major issues. While some issues play more prominently in the press than others, issues related to Labor Law feature two vastly divergent approaches. Since President Trump already has a track record on federal labor policy and Vice President Harris signals support for President Biden’s labor policy, here are three areas in Labor Law that will be sensitive to who takes the oath of office on January 20, 2025.
- 10.09.2024Three Strikes: Lessons Learned From The ILA, Autoworkers, & Actors Strikes
Now that the ILA short-lived but eventful strike is over, it is important to understand what this strike and the two noteworthy strikes of last year by the Autoworkers and the Actors-Writers have in common and what we might learn from them. Technology. Or, to put it a bit more expansively, the march of advancing technology pitted against the anxieties over job loss. The Autoworkers’ union picketed in part because of job vulnerability due to the increasing market share of electric cars, which require a different process to manufacture. Actors and Writers protested the way artificial intelligence is affecting and will affect their work. The ILA struck in part due to the threat automation presents to their jobs on the docks. The strikes were all viewed as successful by the unions because of significant wage increases. But were they successful at stemming the tide of technology or have they just plugged the dam? Put another way, what can employers do to embrace technology while also embracing its employees and maintaining labor peace?
- 10.08.2024Should I Stay Or Should I Go: The NLRB Weighs In
On October 7, 2024, NLRB General Counsel Jennifer Abruzzo announced to her staff and the public that she intends to prosecute employers for “Stay-or-Pay” employment agreements, agreements that require a new employee to repay outlays for training if the employee leaves within a certain timeframe after being hired. The General Counsel reasons that such provisions are “presumptively unlawful” under Section 7 of the National Labor Relations Act, which protects the rights to unionize or engage in protected concerted activity, because they force employees to remain in jobs they would otherwise leave, or deter an employee from union activity so as not to risk termination and the repayment obligation.
- 08.26.2024SIXTH CIRCUIT DECLINES TO DEFER TO NLRB DECISION CITING LOPER BRIGHT
There has been much speculation about how much deference the courts will give to federal administrative agencies,’ including the NLRB’s statutory interpretations in the wake of the Supreme Court’s June Loper Bright decision which jettisoned Chevron deference. We didn’t need to wait long to find out the 6th Circuit’s answer – none.
- 07.09.2024Chevron’s Passing Likely to Reshape Labor and Employment Law as SCOTUS Questions Presumption of Agency Subject Matter Expertise
On June 28, 2024 the Supreme Court overruled the 40-year-old landmark ruling known as Chevron, a doctrine of administrative law that has until now required courts to defer to federal agencies’ interpretations of ambiguous statutory language. By doing so, the Court has created opportunities for court challenges to agency regulations including those issued by federal labor law and equal employment law agencies.
- 06.21.2024The NLRB Gives An Employee Four Strikes And He's Still Not Out
The National Labor Relations Act gives employees the right to engage in activities together with and on behalf of their co-workers to improve working conditions, called protected concerted activity. The question frequently arises as to the outer bounds of this right. How far can an employee take the cause?
