The National Labor Relations Act (“Act”) empowers the National Labor Relations Board (“Board”) to “take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act.” 29 U.S.C. § 160(c). For much of the Board’s history, that has generally resulted in Board Orders that involve some combination of notice posting, backpay, and reinstatement.
Continue Reading Fifth Circuit is Set to Weigh in on NLRB’s Enhanced Financial Remedies

After a nearly six-year legal battle, the Fifth Circuit has struck down the U.S. Equal Employment Opportunity Commission’s 2012 Enforcement Guidance on the consideration of criminal history in employment decisions.  On August 6, a three-judge panel held that the Guidance was a substantive rule the EEOC had no authority to issue and that the EEOC can no longer enforce the Guidance or treat it as binding in any respect.
Continue Reading EEOC Criminal History Guidance Struck Down by Fifth Circuit

The Supreme Court once again has shown its strong preference for enforcing the terms of arbitration agreements as written by the parties.  In Henry Schein Inc. v. Archer & White Sales Inc., Justice Kavanaugh’s first written opinion, the Court held that when an arbitration agreement delegates the threshold question of arbitrability to an arbitrator, the arbitrator, not a court, should decide the question, even if it is clear to a court that the dispute is not covered by the arbitration agreement. 
Continue Reading Supreme Court Enforces Yet Another Arbitration Agreement