Tag: Labor law

What Employers Need to Know About President Trump’s Removal of NLRB Member Gwynne Wilcox and Two EEOC Commissioners

Andrew I. Herman and Gabrielle I. Weiss ●

In a significant move, President Donald Trump has fired a member of the National Labor Relations Board (“NLRB” or “Board”) without reference to the statutory protections that typically shield Board members from being removed without cause. While incoming administrations, regardless of party, have historically taken steps to populate federal appointments with individuals aligned with their goals and policies, the Trump Administration is doing so at a pace and intensity rarely, if ever, seen before. President Trump’s removal of NLRB member Gwynne Wilcox (“Wilcox”) has immediate impact on employers, unions, and workers, as it leaves the Board without the quorum needed to issue decisions in labor cases. The president’s authority to remove Board members will be tested in court and could impact the future of the NLRB and the landscape of U.S. labor law.

Background

In September 2023, the Senate confirmed Wilcox to a second five-year term through the end of August 2028. Former Chairman and Democrat appointee Lauren McFerran’s (“McFerran”) term expired on December 16, 2024, after the Senate voted not to advance her nomination, signaling the Republican-led Senate’s intention to change the Board’s composition. At the time of McFerran’s non-renewal, there was already a vacancy on the Board, leaving two possible spots for President Trump to fill upon taking office. President Trump’s removal of Wilcox on January 27, 2025, now leaves three of the five seats for NLRB members vacant and eliminates what would have otherwise been a Democratic majority on the Board. The only current members (for now) are Republican appointee Marvin Kaplan, who the president named the Chair of the NLRB on Inauguration Day, and Democrat appointee David Prouty, whose term is set to end in August 2025.

Impact on the NLRB and Employers

The immediate consequence of Wilcox’s removal is the NLRB’s lack of a quorum, meaning it cannot issue decisions and will leave many pending cases in limbo. The Board’s authority to issue decisions will be halted until a quorum is restored, either through the Senate confirming a new member appointed by President Trump or Wilcox being reinstated.

For employers, this development could be a double-edged sword. On one hand, the freeze in NLRB decisions may delay rulings that could have been unfavorable to employers with pending cases before the Board. On the other hand, during the Biden administration, the Board issued a number of decisions that were favorable for unions and expanded protections for employee rights under the National Labor Relations Act. Without any further rulings, those decisions will remain the law for now. It is widely expected that a Trump NLRB would look to overturn much of that precedent and issue pro-employer decisions. The Board’s ability to do that is now hindered until the member seats are filled.

President Trump’s Constitutional Justifications

President Trump’s legal justification for the removal of Wilcox hinges on a 2020 Supreme Court decision in Seila Law LLC v. CFPB. In Seila Law, the Supreme Court held the executive authority did not extend to removal of members of multi-member agency boards that are: 1) balanced on partisan lines; and 2) perform legislative and judicial functions but not executive functions. Such a “removal shield” prohibits the president from exercising executive authority to remove members from agency boards if meeting these conditions. In firing Wilcox, President Trump specifically cited Seila Law, claiming the NLRB does not qualify for the exception because it is not balanced on partisan lines and because it exercises executive powers, such as issuing regulations and pursuing enforcement actions in federal court.  

President Trump’s interpretation will be challenged in federal court. Wilcox has already indicated her intention to pursue “all legal avenues” to contest her removal, citing long-standing Supreme Court precedent that protects NLRB members from being fired without cause. In addition to addressing the extent of presidential powers to remove NLRB members, the legal fight over Wilcox’s firing ultimately may provide a precedent for companies and the numerous lawsuits that have been filed over the past year pursuing constitutional challenges against the NLRB, including on the basis that the Board’s members and administrative law judges are unconstitutionally shielded from removal by the president.

Simultaneous Overhauls at the EEOC

President Trump’s recent actions are not limited to the NLRB. On January 28, 2025, President Trump also fired Jocelyn Samuels and Charlotte Burrows, two Democratic commissioners of the Equal Employment Opportunity Commission (“EEOC”), along with the EEOC’s general counsel, Karla Gilbride. This move eliminates the Democratic majority on the EEOC. By dismissing the EEOC commissioners, President Trump has taken steps to advance his second-term civil rights law agenda.  

Conclusion

President Trump’s removal of an NLRB member and two EEOC commissioners reflects the administration’s broader strategy to reshape independent agencies to align with the administration’s policy goals. President Trump’s assertion of power to remove NLRB members and EEOC commissioners marks a pivotal moment in labor relations and regulatory oversight of employers. The legal battles and policy shifts that follow are expected to shape the landscape for employers, creating a period of uncertainty. Attorneys in the Labor & Employment practice group at Blank Rome are prepared to assist as potential changes in labor law enforcement and agency operations arise.

Trump Fires NLRB General Counsel

Andrew I. Herman ●

In a much-anticipated move, President Donald Trump has fired Jennifer Abruzzo, the general counsel of the National Labor Relations Board (“NLRB”). Trump’s action follows a precedent set by former President Joe Biden. On his first day in office four years ago, Biden ousted Peter Robb, the NLRB’s general counsel during the first Trump administration. During her tenure, Abruzzo aggressively sought to expand workers’ rights under the National Labor Relations Act, empower unions, and protect those seeking to organize workers. 

The removal of Abruzzo opens the door for President Trump to appoint a new general counsel for the Board. The White House has yet to announce Abruzzo’s replacement, but the president’s transition team for the NLRB was led by Robb and his former deputy, Alice Stock. The new U.S. Labor Board’s prosecutor is expected to adopt a more pro-business stance. It remains to be seen, however, if that agenda will be influenced by Trump’s campaign rhetoric and promises in support of workers and union members. Many have noted that Trump’s choice to lead the Department of Labor, Representative Lori Chavez-DeRemer, is an unusually pro-union Republican whose candidacy was backed by the International Brotherhood of Teamsters in part because she had backed the Protecting the Right to Organize Act as a Congresswoman. 

Continue reading “Trump Fires NLRB General Counsel”

NLRB Overturns Two Decades-Old Precedents Relating to What Employers Can Say to Employees Regarding Views on Unions

Anthony B. Haller and Gabrielle I. Weiss ●

With a new administration looming, the National Labor Relations Board (“Board”) recently issued two decisions that radically depart from established law about what an employer can say and how an employer can lawfully meet with its employees during a union organizing campaign.

  • Employers have always been able to tell employees that one of the disadvantages of unions is that they impede direct dealing between the company and its employees. This is because employees give up their individual rights in favor of exclusive collective representation by the union, and it puts a third party in the middle of the employment relationship. Despite this being an obvious truism, depending on what is said by the company, this may now be illegal under the Board’s decision in Siren Retail Corp. dba Starbucks and Workers United affiliated with Service Employees International Union (“Starbucks”).

  • Employers have always been able to have a mandatory meeting—the so-called “captive audience meeting”—of all employees in the bargaining unit at least 24 hours before a union representation election to make its case for why it believes that a union is unnecessary for the employees. These meetings have been among the top tools employers use to fend off union organizing campaigns. This type of mandatory meeting is now illegal under the Board’s decision in Amazon.com Services LLC and Amazon Labor Union (“Amazon”).

Time will tell if these decisions hold up under the new administration; but, for now, they are the law.

Continue reading “NLRB Overturns Two Decades-Old Precedents Relating to What Employers Can Say to Employees Regarding Views on Unions”

Oops, the NLRB Does It Again—The Handbook Police Are Back!

Jason E. Reisman ●

Just yesterday, the National Labor Relations Board (“NLRB”) issued a decision (Stericycle Inc.), which overrules its own 2017 Boeing Co. decision and establishes a new standard for evaluating employer handbook policies and rules under the National Labor Relations Act (“NLRA”). Welcome (back) to what is the revolving door decision-making process that is the political machine of the NLRB.

Effectively, the current Biden NLRB has reversed one of the hallmark decisions of the Trump NLRB. When the Trump NLRB decided Boeing Co., it seemed to strike a balance in evaluating workplace rules, weighing the rule’s impact on workers’ NLRA rights against the employer’s legitimate business justification for the rule.

Although the concept of balancing those two potentially competing interests seems rational, the current NLRB Chair, Lauren McFerran, said that “Boeing gave too little consideration to the chilling effect that work rules can have on workers’ Section 7 rights.” NLRB Press Release 8/2/23. Taking that view to the extreme, the NLRB has shifted the bulk of the burden to employers to establish the legitimacy of the work rule. Under Stericycle, the most important consideration in evaluating a workplace rule is how an employee would understand it—not how the employer or a neutral third party might. The NLRB’s new approach is evident in this passage from the decision:

We clarify that the Board will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity. Consistent with this perspective, the employer’s intent in maintaining a rule is immaterial. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden, even if a contrary, noncoercive interpretation of the rule is also reasonable.

372 NLRB No. 113, p.2 (emphasis added). Incredibly, if an employee could interpret the rule to chill the exercise of NLRA rights, the rule is presumed unlawful. The only way for an employer to rebut that presumption is “by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.” Id. If the employer can prove both of those, the work rule will be found lawful. Good luck.

The deck is now stacked against employer work rules that have any potential ambiguity in the mind of an employee. Given the energy and zeal demonstrated by the NLRB General Counsel in seeking to hold employers accountable, it is reasonable to presume that the NLRB “handbook police” will return, leaving almost no handbook completely safe from attack. Employers should expect to see more scrutiny given to work rules and policies, especially those particularly sensitive ones such as anti-harassment and workplace conduct policies.

New York’s HERO Act: What Employers Need to Know; What Employers Need to Do Right Now

William J. Anthony

New York recently amended its Health and Essential Rights Act (“HERO Act”) and published its “Model Airborne Infectious Disease Exposure Prevention Plan.” While the Model Plan specifies that there is currently no airborne infectious disease outbreak, the HERO Act requires New York employers to take steps now to comply with the statute. “Airborne infectious disease” is defined as any infectious, viral, bacterial, or fungal disease that is transmissible through the air in the form of aerosol particles or droplets and is designated by the Commissioner of Health as a highly communicable disease that presents a serious risk of harm to the public health. While COVID-19 would have been so designated a year ago, it is not so designated at this time. Likewise, unless designated by the Commissioner of Health, the seasonal flu will not qualify. See the New York Department of Labor Airborne Infectious Disease Exposure Prevention Standard here: The Airborne Infectious Disease Exposure Prevention Standard (ny.gov). Nevertheless, employers cannot wait until an outbreak is declared to comply with the statute.

What Employers Need to Know

The Act has broad definitions of “employer,” “employee,” and “work site.” “Employer” includes any person, entity, business, corporation, partnership, limited liability company, or association employing, hiring, or paying for the labor of any individual. “Employee” means any person providing labor or services for remuneration within the state and without regard to immigration status. The definition includes independent contractors. A “work site” means any physical space, including vehicles, where work is performed and the employer has the ability to exercise control. A work site includes employer-provided housing and transportation. Thankfully, employees’ own homes and vehicles are not covered.

The Act prohibits employers from retaliating or taking adverse action against any employee who exercises rights under the statute; reports violations of the statute; reports airborne infectious disease exposure; or refuses to work where the employee reasonably believes, in good faith, that such work exposes employees to an airborne infectious disease due to working conditions inconsistent with the law. The law, however, requires the employee to first notify the employer of the problem and then give the employer an opportunity to cure it.

Continue reading “New York’s HERO Act: What Employers Need to Know; What Employers Need to Do Right Now”

With an Eye Towards Pay Equity Illinois Enters the Wage Data Collection Game

Blair A. Gerold

On March 23, 2021, Illinois amended the state’s Equal Pay Act of 2003 to include additional reporting requirements targeted at identifying gender and racial pay disparities.

Under the newly enacted Section 11 of the Equal Pay Act, any private employer with more than 100 employees in Illinois must obtain an “equal pay registration certificate” from the Illinois Department of Labor. Employers must obtain this certificate within three years of the amendment’s effective date—i.e., by March 23, 2024—and then every two years thereafter.

To apply for this certificate, the employer must submit a $150 filing fee, the employer’s most recent EEO-1 report, and a report of all employees from the past calendar year “separated by gender and the race and ethnicity categories as reported in the business’s most recently filed Employer Information Report EEO-1, and report the total wages . . . paid to each employee during the past calendar year.”

Continue reading “With an Eye Towards Pay Equity Illinois Enters the Wage Data Collection Game”

New York City Matches New York State’s Sick Leave Requirements, and Adds More

Jacob W.E. Kearney, Stephen E. Tisman, Anthony A. Mingione, and Mara B. Levin

New York City recently amended its Earned Safe and Sick Time Act (the “Act”) to match New York State’s recent changes to the Labor Law requiring all employers to provide sick leave to employees as discussed in our prior posts (Empire State Requires All Employers to Provide Sick Leave; Act Now! Changes to New York Sick Leave Are Here). New York City’s Act now matches the New York State requirements that employers must allow employees to accrue safe/sick time of between 40 to 56 hours per year (depending on employer size and net income). Although effective September 30, employees may be restricted from using any additional accrued paid time under the new legislation until January 1, 2021. New York City employers are also required to provide notice of the changes to their employees by October 30, 2020.

Mirroring the new Labor Law requirements, the New York City Act provides that:

    • Employers with 100 or more employees must allow employees to accrue at least 56 hours of paid safe/sick time each calendar year;
    • Employers with between five and 99 employees must allow employees to accrue at least 40 hours of paid safe/sick time each calendar year;
    • Employers with fewer than five employees but having a net income greater than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of paid safe/sick time each calendar year; and
    • Employers with fewer than five employees and having a net income less than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of unpaid safe/sick time each calendar year.

Continue reading “New York City Matches New York State’s Sick Leave Requirements, and Adds More”

NJ WARN Amended in Light of COVID-19 Pandemic

Asima J. Ahmad

On April 14, 2020, New Jersey Governor Phil Murphy signed Senate Bill 2353 into law, which excludes mass layoffs resulting from the coronavirus COVID-19 pandemic from the notice and severance pay requirements contained in the Millville Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN”). Prior to this change, employers faced uncertainty on whether they would be obligated to provide notice and severance pay to each full-time employee that was terminated with less than the required 60-days’ notice due to the pandemic.

Specifically, SB 2353 revises the definition of “mass layoff” to mirror the exceptions that are already contained in NJ WARN’s definition of “termination of operations.” As a result, a mass layoff which would otherwise require notice shall not include one “made necessary because of a fire, flood, natural disaster, national emergency, act of war, civil disorder or industrial sabotage, decertification from participation in the Medicare and Medicaid programs as provided under Titles XVIII and XIX of the federal “Social Security Act,” Pub.L. 74-271 (42 U.S.C. s.1395 et seq.) or license revocation pursuant to P.L.1971, c.136 (C.26:2H-1 et al.).” These changes go into effect immediately and are retroactive to March 9, 2020, the date that Governor Murphy declared a COVID-19-based state of emergency and public health emergency in New Jersey via Executive Order 103. Continue reading “NJ WARN Amended in Light of COVID-19 Pandemic”

City of LA Publishes Rules and Regulations Clarifying COVID-19 Supplemental Paid Sick Leave Order

Caitlin I. Sanders

As we previously reported, on April 7, 2020, Los Angeles City Mayor Garcetti issued an emergency order calling for supplemental paid sick leave for City employees who are not covered by the federal Families First Coronavirus Response Act and who must miss work for reasons related to COVID-19. On April 11, 2020, the Los Angeles Office of Wage Standards (“OWS”) issued rules and regulations clarifying Mayor Garcetti’s supplemental paid sick leave order. The rules and regulations can be found on the OWS website here.

The OWS anticipates updating these rules and regulations, and we will continue to monitor the OWS for the latest guidance.

For the latest updates, please visit Blank Rome’s Coronavirus (“COVID-19”) Task Force page.

Emergency COVID-19 Order Issued in City of Los Angeles: Additional Paid Sick Leave Requirements for Large LA Employers

Caitlin I. Sanders

On April 7, 2020, Los Angeles City Mayor Eric Garcetti issued an Emergency Order requiring certain employers to provide up to 80 hours of supplemental paid sick leave to employees who are not covered by the federal Families First Coronavirus Response Act for reasons related to COVID-19. The Emergency Order can be found on Mayor Garcetti’s website here.

Here are the basic provisions of Mayor Garcetti’s COVID-19 Supplemental Paid Leave Order (“Order”):

Who Is Covered by the Supplemental Paid Sick Leave Order?

Employers with 500 or more employees within the City of Los Angeles or 2,000 or more employees nationally may be required to provide supplemental paid sick leave to employees who are unable to work or telework if they meet the following criteria: (i) they have worked for the same employer from February 3, 2020, through March 4, 2020, and (ii) they perform work in the City of Los Angeles.

Emergency and health services, parcel delivery services, and government agency employees are expressly exempt from the Order. Continue reading “Emergency COVID-19 Order Issued in City of Los Angeles: Additional Paid Sick Leave Requirements for Large LA Employers”

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