NLRB Returns to Clear Standard for Addressing Abusive Employee Conduct. This week, the National Labor Relations Board (NLRB) abandoned a 2023 ruling (Lion Elastomers LLC II) that made it more difficult for employers to discipline employees for engaging in abusive conduct while simultaneously engaging in activity otherwise protected by the National Labor Relations Act (e.g., shouting racist comments while picketing). In a decision steeped in judicial and NLRB procedure, the Board determined, 3–1, that Lion Elastomers LLC II had been vacated in 2024 by the U.S. Court of Appeals for the Fifth Circuit. This week’s ruling effectively reinstates a 2020 decision that permitted an employer to discipline an employee in such circumstances as long as the employer could demonstrate it would have taken the same action in the absence of the employee’s protected activity. Ryan T. Sears and Zachary V. Zagger have the details.
President Trump Extends $100,000 H-1B Fee, Orders Interagency Coordination.
- On September 18, 2026, President Trump extended Proclamation 10973 (“Restriction on Entry of Certain Nonimmigrant Workers”) (the “2025 Proclamation”), which places a $100,000 fee on H-1B visa holders entering the United States, until September 21, 2027. According to this most recent proclamation, “The restrictions enacted by the 2025 Proclamation have proven to be highly effective but the underlying conditions necessitating the restrictions persist.” Three separate and ongoing legal challenges have been filed against the original 2025 Proclamation. Thus far, the U.S. District Court for the District of Columbia has upheld the authority of the president to enact the fee, while the U.S. District Court for the District of Massachusetts has ruled that the fee is an unauthorized use of Congress’s taxing authority. Both of those decisions are on appeal.
- On September 18, 2026, President Trump also issued an executive order, entitled, “Enhancing Program Integrity and Interagency Coordination in the Administration of the H-1B Nonimmigrant Visa Program.” The executive order instructs the secretaries of state, labor, and homeland security, when adjudicating and processing H-1B related petitions or applications, to “take into account … whether the employer sponsor directly or indirectly engaged in layoffs within the previous year or plans future layoffs that negatively affect the employment of similarly situated United States workers.” The executive order further instructs the administrator of the U.S. Department of Labor’s Wage and Hour Division to “begin reviewing data related to previously submitted labor condition applications to determine whether further action against sponsoring employers is warranted.” Daniela Medrano Sullivan explains how this order may impact employers.
Justice John Marshall Harlan II. On September 23, 1971, John Marshall Harlan II, associate justice of the Supreme Court of the United States, retired from the Court due to ill health. (He died from cancer just months later on December 29, 1971.) Harlan, whose grandfather, John Marshall Harlan, was the sole dissenting vote in Plessy v. Ferguson, served on the Court from 1955 to 1971—a period generally described as the “Warren Court.” Harlan’s 1955 confirmation hearing before the Senate Judiciary Committee began the tradition of Supreme Court nominees testifying before the committee. (Other nominees had testified in the past—beginning in 1925 with nominee Harlan Fiske Stone—but it was a sporadic practice.)
A strong supporter of the First Amendment, Harlan wrote the majority opinion in the 1958 case, National Association for the Advancement of Colored People v. Alabama. In that case, the Court ruled that the Fourteenth Amendment protected the NAACP from being compelled to disclose its membership list to the State of Alabama. Harlan wrote, “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
