Update: On March 8, 2024, the Eastern District of Texas granted summary judgment in favor of the Chamber of Commerce and struck down the NLRB’s new final joint employer rule. The opinion conducts a thorough review of the history of the joint employer standard and ultimately concludes that the Final Rule is contrary to the common law.
Continue Reading Judge Strikes Down NLRB’s Final Joint Employer Rule

The NRLB has hit another roadblock in its implementation of a new final joint employer rule (the “Final Rule”) as a Texas federal judge delayed its implementation until March 11. The Final Rule, which was supposed to take effect on February 26, would have made organizations liable for violations of the NLRA if they had direct or indirect control over the terms and conditions of employment of another firm’s employees. This change increases the potential of liability from franchising or contracting with third parties. To see more information on the implications of the Final Rule, see our previous articles here and here.Continue Reading NLRB’s Final Joint Employer Rule Stayed Amid Legal Challenges

A few months ago, we wrote about the National Labor Relations Board (“NLRB” or “Board”) publishing its widely anticipated final joint-employer rule (the “Final Rule”). The Final Rule overrules the NLRB’s 2020 joint-employer rule and broadly expands the definition of joint-employer under the National Labor Relations Act (“NLRA” or “Act”). See Standard for Determining Joint Employer Status, 88 Fed. Reg. 73946 (October 27, 2023) (to be codified at 29 C.F.R. pt. 103).
Continue Reading NLRB’s Final Joint Employer Rule Takes Effect This Month

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

On January 31, 2024, an Administrative Law Judge (“ALJ”) for the National Labor Relations Board (the “NLRB” or the “Board”) found that Starbucks Corporation (“Starbucks”) violated federal labor law when certain of its managers asked employees whether they would be working their scheduled shifts or otherwise wanted to be scheduled for shifts during a planned strike that was communicated to management. Employers should take notice of the roadmap this decision provides to avoid similar pitfalls.
Continue Reading The NLRB Finds Questions About Employees’ Strike Plans for Staffing Purposes Unlawful

This fall, the National Labor Relations Board (NLRB) published its case processing data for Fiscal Year 2023 (FY2023) – revealing a significant uptick in Unfair Labor Practice (ULP) Charge filings and union petitions since FY2022. Specifically, the NLRB saw a 10% increase in ULP Charges filed since FY2022. This year over year increase is significant, as there was a 19% increase in ULP Charges in FY2022 itself. The agency received just 15,082 ULP Charges in FY2021 while in FY2023, employees filed nearly 20,000 ULP Charges. This surge in ULP Charges during the last few years illustrates the increased scrutiny on employers’ compliance with the National Labor Relations Act (NLRA).
Continue Reading Employers Beware: Recent Surge in ULP Charge Filings, Union Election Petitions, and RM Petitions

On October 30, 2023, President Biden issued a wide-ranging Executive Order to address the development of artificial intelligence (“AI”) in the U.S. Entitled the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, the Order seeks to address both the “myriad benefits” as well as what it calls the “substantial risks” that AI poses to the country. It caps off a busy year for the Executive Branch in the AI space. In February the Equal Employment Opportunity Commission published its Strategic Enforcement Plan highlighted AI as a chief concern and in April the White House released an AI Bill of Rights. Through the Order, described as a “Federal Government-wide” effort, the administration charges a number of federal agencies, including most notably, the Department of Labor, with addressing the impacts of employers’ use of AI on job security and workers’ rights.
Continue Reading Biden’s AI Order and the Implications for Employers

On October 27, 2023, the National Labor Relations Board (“NLRB”) published its anticipated Final Rule modifying the standard for determining joint-employer status under the National Labor Relations Act (“NLRA”).  See Standard for Determining Joint Employer Status, 88 Fed. Reg. 73946 (October 27, 2023) (to be codified at 29 C.F.R. pt. 103).  The Final Rule overrules the NLRB’s 2020 joint-employer rule and broadly expands the definition of joint-employer.  
Continue Reading NLRB Issues Final Joint Employer Rule