The Practical NLRB Advisor: Spring 2024

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Spring 2024 issue of the Practical NLRB Advisor. This edition of the Advisor is a compilation of good and bad news for employers. On the good news side, we discuss several current challenges to administrative agency authority in general, and the National Labor Relations Board’s (NLRB) authority in particular. On the bad news side, we document a small part of the aggressive agenda of the current NLRB. From attempting to administratively impose “card check” to dramatically altering business-to-business relationships, and from finding “protected activity” in even the most attenuated circumstances to rendering the reversal of precedent an everyday occurrence, the current Board majority and its general counsel have been unequaled in their approach.

This issue of the Advisor also covers the Board’s joint-employer rule that will make it far more likely for one business to be deemed the joint employer of another business’s employees under the National Labor Relations Act (NLRA). The new rule eliminates the standards and predictable consequences that the current rule provides and deprives employers of the ability to reasonably forecast the risks and costs of their contracts with providers, vendors, subcontractors, and franchisees.

Finally, this issue covers other significant cases coming out of the federal circuit courts and the upcoming decisions from the Supreme Court of the United States—two of which may be the most notable cases in the judiciary’s current re-evaluation of the administrative state. Moreover, the Supreme Court has agreed to hear yet another case that may well diminish the NLRB’s power. For an agency that has traditionally enjoyed an incredibly high winning percentage in the federal courts, the evolution of these cases could not have been pleasant for the NLRB. Are these cases an aberration or part and parcel of an even larger effort to rein in the administrative state? If, as many predict, it is the latter, that is both good news for employers and very good news for those who favor a more limited and accountable government.

We will issue the next edition of the Practical NLRB Advisor in the coming months. Please let us know if you have any questions.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor these and other labor law developments and provide updates on the firm’s Traditional Labor Relations blog. Important information for employers is also available via the firm’s webinars and Traditional Labor Relations podcasts.