Labor

Expert Analysis

• Justices Should Focus On Property Rights In Union Case

  

  Questions from U.S. Supreme Court justices in the recent Cedar Point Nursery v. Hassid oral argument indicate that the court may be missing the real issue, and corresponding remedy, in the union access case — the constitutionality of uncompensated property taking, says Michael Berger at Manatt.

• 3 Decisions A Biden NLRB Will Likely Overturn

  

  When the National Labor Relations Board transitions to a Democratic majority under President Joe Biden, there will be strong opportunities to overturn pro-employer decisions concerning management rights, employee micro-units and the review standard for workplace policies, says Daniel Johns at Cozen O'Connor.

• NLRB Memo Signals Expansion Of Workers' Protected Activity

  

  Following the National Labor Relations Board’s recent memo on protected, concerted activity, employers can likely expect the general counsel’s office to push the boundaries of employee safeguards, including protections for certain social justice actions that would not normally be deemed related to working conditions, say Ashley Cano and John Phillips at Seyfarth.

• NYC Fast Food Worker Protections May Portend 'At Will' Shift

  

  Two new laws in New York City that eliminate fast food employers' discretion to discharge employees at will signify fundamental changes to the bedrock of U.S. employment law, and could foreshadow additional state and local restrictions on workforce management, say Harris Mufson and Julia Hollreiser at Proskauer.

• Title IX Compliance Hasn't Changed — Yet

  

  Despite perceptions of the dismantling of Trump-era Title IX policy, President Joe Biden's recent executive order on the topic does not actually change the regulation and sheds very little light on exactly how the administration intends to alter the rules to fit its agenda, say Lauren Tompkins and Sarah Moore at Fisher Phillips.

• The Senate's Filibuster Rules Are Unconstitutional

  

  The U.S. Senate filibuster rules are inconsistent with several provisions of the Constitution, and even if lawmakers decline to abolish the political tactic and no plaintiff can be found to bring its constitutional flaws before the courts, the Senate has at least three options to reduce filibuster use, says Kirk Jenkins at Arnold & Porter.

• Labor And Employment Changes Ahead For Gov't Contractors

  

  President Joe Biden's pro-employee promises, such as a $15 per hour minimum wage and support for union organizing, may be difficult to achieve legislatively, so he will likely impose policy changes on federal contractors using his powers under the Federal Property and Administrative Services Act, says Michael Schrier at Husch Blackwell.

• High Court Union Case Could Impede Basic Access Rights

  

  The little-noticed case of Cedar Point Nursery v. Hassid, to be argued before the U.S. Supreme Court Monday, challenges seemingly settled California law regulating labor organizers' right of access and threatens laws covering everything from fair housing to rent regulation to public accommodations, say Scott Cummings at UCLA and Nestor Davidson at Fordham University.

• How Cos. Can Weather Growing DOJ Labor Antitrust Scrutiny

  

  In light of of the U.S. Department of Justice's increasing antitrust scrutiny of labor markets and President Joe Biden's vow to eliminate most noncompetes, companies should customize their compliance plans and review employee agreements to mitigate risk, say Eric Grannon and Adam Acosta at White & Case.

• Employee Speech Considerations In The Age Of Remote Work

  

  With the pandemic requiring most workforces to operate remotely, employees are increasingly voicing their opinions on social media, which presents unique challenges for companies investigating worker complaints and navigating free speech protections, say Noa Baddish and Elise Bloom at Proskauer.

• Grocery 'Hero Pay' Mandates Are Unfair And Likely Illegal

  

  Though recently passed ordinances mandating "hero pay" for certain grocery store workers in California and Washington are well-intentioned, they do not protect essential workers equally and are likely illegal, says Anthony Caso at Chapman University's Fowler School of Law.

• Rulemaking Isn't The Answer To NLRB Policy Oscillation

  

  Recent activity at the National Labor Relations Board, such as the Trump administration's failed attempt to end Obama-era representation-case procedure, has not slowed the policy pendulum and shows that opting for rulemaking over adjudication poses the risk of judicial backlash, say former NLRB Chairman Mark Gaston Pearce, now at the Georgetown Law Center, and Amanda Jaret at the United Food and Commercial Workers.

• What Employers Should Consider As Union Legislation Looms

  

  A new Democratic majority in Washington means the U.S. may soon see legislation akin to the Obama-era Employee Free Choice Act that never passed into law, so employers would do well to take a lesson from Canada about collective bargaining and highlight for policymakers how inconsistencies in the EFCA run contrary to trade union principles, say attorneys at Borden Ladner.