Labor & Employment News Alert

“Byzantine Process” of ALJ Removal Found Unconstitutional: The Latest in an Onslaught of Court Challenges to the NLRB

December 10, 2024

On Tuesday, December 10, 2024, a federal judge agreed with a Massachusetts hospital that challenged National Labor Board Administrative Law Judges’ job protections, holding that the “tenure protections” are unconstitutional. The hospital argued that the ALJs enjoyed “multiple levels of protection from presidential removal,” an argument that clearly persuaded the court. The court wrote that “this…

Federal Judge Sets Aside FTC Noncompete Ban

August 21, 2024

On August 20, 2024, a federal judge set aside the Federal Trade Commission’s (“FTC”) ban on noncompete agreements (the “Rule”), which was to take effect in September of this year. The Rule had sought to characterize noncompete agreements in employment contracts as an unfair method of competition and effectively ban the use of such agreements nationwide. Earlier this spring, the Jackson Kelly…

Supreme Court Places a “Tombstone” on Chevron Deference: What are the Implications for the NLRB?

June 28, 2024

On June 28, 2024, the Supreme Court issued a highly-anticipated decision in the twin cases of Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dep’t of Commerce, which will now make it more difficult for federal agencies to issue rules and regulations that aim to carry out statutory mandates of Congress. The 6-3 decision overrules the 1984 decision Chevron v. Natural Resources Defense…

Supreme Court Backs Starbucks on Injunction Test in a Win for Employers

June 13, 2024

Earlier today, the Supreme Court of the United States issued an 8-1 decision in Starbucks Corp. v. McKinney, 602 U.S. __ (2024), making it more difficult for the National Labor Relations Board (“NLRB” or the “Board”) to win injunctions against employers by directing district courts to apply the traditional four-factor test when the Board sues to stop alleged unfair labor practices (“ULP”) while…

FTC Approves Final Rule Banning Noncompete Agreements

April 24, 2024

On April 23, 2024, the Federal Trade Commission (“FTC”) approved a proposed final rule that would effectively ban noncompete clauses in employment contracts. In issuing the final rule, the FTC stated that noncompete agreements are an “unfair method of competition” that constitute a violation of Section 5 of the Federal Trade Commission Act. The Rule is set to take effect 120 days from its entry…

Department of Labor Issues Final Rule Increasing Salary Threshold for Overtime Exemptions

April 24, 2024

On April 23, 2024, the Department of Labor issued a final rule, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees.” The rule significantly raises the minimum salary thresholds to qualify for certain exemptions from overtime pay under the Fair Labor Standards Act (FLSA). Specifically, the rule will raise the minimum weekly…

TITLE VII IS NOW A GRIEVANCE STATUTE FOR EMPLOYEES

April 17, 2024

For years, federal courts have followed two mantras:  (1) employment statutes should not function as “general civility” codes in the American workplace; and (2) Title VII is not a vehicle for a court to serve as a super-personnel department weighing the prudence of employments decisions.  See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006);  Morgan v. Mylan Pharms. Inc., No.…

NLRB Faces New Constitutional Challenge, as Amazon Joins the Fight

February 20, 2024

The list of employers challenging the National Labor Relations Board (“NLRB”) grew again last week, as Amazon joined the likes of SpaceX, Starbucks, and Trader Joe’s in arguing that the NLRB is unconstitutional.

In an answer to a Board charge, Amazon asserted that the structure of the NLRB is unconstitutional because it violates the separation of powers because the president cannot remove NLRB…

College Basketball Players are “Employees,” says NLRB Regional Director

February 6, 2024

On February 5, 2024, a regional director for the National Labor Relations Board (NLRB) concluded that Dartmouth College’s men’s basketball players are “employees,” and that, as employees, they are eligible to unionize. The decision has seismic implications and further clouds the future of the NCAA’s “amateur” status.

In her decision, Regional Director Laura Sacks stated: “Because Dartmouth has the…

NLRB Finalizes Rule Broadening Joint-Employer Test

October 26, 2023

On October 26, 2023, the National Labor Relations Board (“NLRB”) issued a widely anticipated rule which broadens the joint-employer test, thereby making it easier for employees of franchisees and staffing agencies to show that the franchisor or agency is their joint employer and bring them to the bargaining table. The NLRB’s press release may be found here, and the final rule may be accessed here…

Fourth Circuit Emphasizes the Plaintiff’s Burden in Wage Discrimination and Retaliation Cases

October 20, 2023

In Noonan v. Consolidated Shoe Company, No. 21-2328 (4th Cir. Oct. 19, 2023), the United States Court of Appeals for the Fourth Circuit stressed the need for proper comparators in wage discrimination cases. The Court also emphasized the employee’s burden to prove a causal link between alleged gender-based discrimination and adverse employment actions.

The Fourth Circuit affirmed the district…

The NLRB Returns to Handbooks… Again!

August 4, 2023

The National Labor Relations Board (NLRB) has delivered yet another major labor law development for 2023. Yesterday, the Board issued its decision in Stericycle, Inc., which overruled its own 2017 decision in Boeing Co. The decision adopts a new legal standard for challenging facially unlawful work rules under Section 8(a)(1) of the National Labor Relations Act (NLRA).

Boeing Co. was one of the…