Management Memo

The Supreme Court’s June 28 decision to overrule the 40-year-old case of Chevron U.S.A. v. Natural Resources Defense Council should not be cause for alarm. It is, however, likely to have implications for employers that are subject to the myriad of workplace laws administered by the United States Department of Labor, the National Labor Relations Board and other executive branch bodies.

Why the Buzz About Chevron?

For decades, courts have relied on the so-called Chevron doctrine—a mandate by which judges were required to defer to agency expertise when handling controversies surrounding Executive Branch policy, but that rule ended with Loper Bright Enterprises et al., v. Raimondo. While the categorical rejection of Chevron—as inconsistent with the responsibility of courts defined in the APA—went farther than most analysts expected, it should be noted, as Justice Neil Gorsuch’s concurrence makes clear, that the Supreme Court hasn’t decided a case on the basis of Chevron since 2016.

Today, we’re bringing you a special breaking news episode on the recent U.S. Supreme Court (SCOTUS) ruling in the Starbucks v. McKinney case, which effectively raises the standard for federal courts issuing injunctions under section 10(j) of the National Labor Relations Act.

This ruling is a significant blow to the National Labor Relations Board’s enforcement priorities. In the video below, Epstein Becker Green attorney Steve Swirsky tells us more.

In Starbucks v. McKinney, the Supreme Court of the United States clarified the standard for injunctive relief under Section 10(j) of the National Labor Relations Act (NLRA or the “Act”). The 9-0 decision,  authored  by Justice Thomas, with Justice Jackson concurring in the judgment and dissenting in part, held that appropriate standard is the four-part test for preliminary injunctive relief articulated in Winter v Natural Resources Defense Council, Inc. 555 U.S. 7 (2008). That test requires the party seeking the injunction to show “[1] he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter, 555 U. S., at 20, 22. This represents a significant change and one that is likely to make it more difficult for the National Labor Relations Board (NLRB or the “Board”) to obtain injunctive relief while an unfair labor practice claim is being litigated.

While four circuits – the Fourth, Seventh, Eighth, and Ninth – already followed the four-factor preliminary injunction test, five other circuits – the Second, Third, Fifth, Tenth and Eleventh, and the Sixth Circuit, where Starbucks v. McKinney originated – had applied a less demanding standard that only required the NLRB to demonstrate that the Board’s Regional Director had concluded that “there is reasonable cause to believe that unfair labor practices have occurred,” and whether injunctive relief is “just and proper.” This two-factor test versus the four-factor test was seen by many to be a lower barrier to injunctive relief.

On Friday, March 29, 2024, the U.S. Occupational Safety and Health Administration (OSHA) issued a final rule, effective May 31, that permits non-employees to accompany and advise OSHA officials during workplace safety and health inspections. The new rule (the “Walkaround Rule”) will authorize workers to designate or select another employee or a non-employee to act as their representative during OSHA safety inspections.

What the New Rule Says

The Walkaround Rule modifies part of an existing standard that governs who may be authorized to join an OSHA inspector during a ...

After a flurry of pro-employee National Labor Relations Board (“NLRB”) decisions, the Fifth Circuit gave employers a glimmer of hope, rejecting the Board’s recent rule issued in Tesla, Inc., 371 NLRB No. 131 (2022) that effectively put every employer’s appearance, dress code and uniform policy in jeopardy of violating Board law if it could be read to limit employees’ ability to wear union apparel or insignia in any way unless the employer is able to meet the high burden of demonstrating that “special circumstances” existed to justify the policy.

The Tesla, Inc ...

On September 6, 2023, Governor Kathy Hochul signed into law Senate Bill 4982 and Assembly Bill 6604, which amends Section 201-D of the New York Labor Law to prohibit most employers from requiring non-managerial and non-supervisory employees to attend employer-sponsored meetings where the primary purpose is to communicate the employer’s opinions on religious or political matters. The amendment took immediate effect and makes New York the latest state to ban so-called “captive audience meetings,” following the National Labor Relations Board (NLRB) General Counsel’s ...

The United States Department of Labor Office of Labor-Management Standards (“OLMS”) recently signaled an alarming willingness to use its broad subpoena powers under Section 601 of the Labor-Management Reporting and Disclosure Act of 1959, as amended, 29 U.S.C. § 521 (“LMRDA” or “Act”), to examine records of explicitly lawful conduct by employers whose employees may be seeking to unionize. This effort maybe a precursor to OLMS’s plan to significantly expand employer reporting and disclosure obligations under Section 203 of the Act which requires employers and ...

On October 26, 2023, the National Labor Relations Board (NLRB or “Board”) issued its Final Rule (the “Rule”) on Joint-Employer status under the National Labor Relations Act (NLRA). Slated to take effect on December 26, 2023, the Rule returns to and expands on the Obama era Browning-Ferris test, scrapping the NLRB’s 2020 Joint Employer test for the sole reason that the current Board disagrees with the 2020 test, and setting up a potential showdown with the Supreme Court over the “major questions” doctrine and the scope of the NLRB’s administrative authority.

The ...

It has been a decision-packed summer at the National Labor Relations Board (“NLRB” or “Board”), and the last weeks of summer were especially active, with a number of significant decisions released at the end of August that could affect employers with non-unionized as well as unionized workforces. The following is a roundup of significant developments, in order of recency:

Board Membership Update: Member Wilcox Confirmed for a Second Term – One Vacancy Remains

On Wednesday, September 6, 2023, the Senate confirmed President Biden’s nomination of Gwynne Wilcox for a ...

The National Labor Relations Board (“Board”) published its final rule (“2023 Rule”) on Friday, August 25, amending the representation election procedures that it previously proposed in 2019 and finalized, after some additional revisions, in 2020 (“2019 Rule”).  Recall that the 2019 Rule had already experienced a significant setback earlier this year.  In January 2023, the D.C. Circuit vacated three substantive changes that the 2019 Rule would have made to the election procedures adopted by the Board in 2014 (“2014 Rule”) while keeping the ...