Blog Posts
Labor and Employment
NLRB General Counsel Signals Another Round of Precedent Reversals: What Employers Need to Know About GC Memo 26-04
On August 26, 2026, NLRB General Counsel Crystal S. Carey issued Memorandum GC 26-04, "Further Guidance Regarding General Counsel Priorities." This is a follow-up to her earlier guidance in GC Memo 26-03 on shifting enforcement priorities, and it's a useful roadmap for any private employer trying to anticipate where federal labor law is heading over the next year or two. The headline for clients: No changes have been made yet, but many of the precedents adopted by the NLRB during the Biden administration may change over the next months or possibly years while the Trump administration remains in office. A General Counsel memo does not change what the National Labor Relations Board has held is unlawful. It's a statement of prosecutorial priorities and the legal positions the GC's office intends to argue in pending and future cases. But GC memos are a reliable early-warning system for where Board law is going, and this one specifies, case by case, which Biden-era Board precedents the current GC is actively trying to unwind. The list includes essentially all of the new or revised interpretations of the National Labor Relations Act issued during the Biden administration. If your organization has non-union operations, unionized operations, or is navigating an organizing campaign, several of these items are worth putting on your radar now. GC Carey opens by reporting that the agency has resolved 9,247 pending cases since she took office, more than a 50% reduction in the backlog she inherited. Significantly, the regional offices are not required to route cases involving these targeted issues through the Division of Advice. Instead, they will keep investigating and prosecuting under existing Board law while the GC pursues these arguments through litigation. Positions Already Being Argued in Pending Cases These are precedents the GC's office has already asked the Board or an administrative law judge to overturn in specific, named cases: Severance agreements and confidentiality/non-disparagement clauses. In Valley Radiology, P.A., the GC is arguing to overrule McLaren Macomb (2023) — the decision that made broad confidentiality and non-disparagement provisions in severance agreements presumptively unlawful. If the Board agrees, employers will regain more latitude to include standard confidentiality and non-disparagement language in severance and separation agreements without automatically committing an unfair labor practice. Consent orders. In the Amazon cases, the GC is asking the Board to overturn Metro Health/Hospital Metropolitano Rio Piedras (2024), which limited the Board's discretion to approve consent orders (settlement mechanisms) over the General Counsel's objection. A reversal would restore more flexibility for administrative law judges to approve settlements even without GC sign-off. Work rules and handbook policies. In Honeywell International, the GC is arguing to overturn Stericycle (2023), the standard that made facially neutral work rules unlawful if they could "chill" protected activity from the perspective of an economically dependent employee reading them in the worst reasonable light. A rollback would ease pressure on standard handbook provisions — think confidentiality, social media, and civility policies — that many employers rewrote to comply with Stericycle. "Captive audience" meetings. In UPS Supply Chain Solutions, the GC has moved to withdraw exceptions in favor of overturning the current Amazon.com Services (2024) rule, which bars employers from requiring employees to attend meetings where the employer expresses its views on unionization. She's urging a return to the decades-old Babcock & Wilcox standard, which permitted mandatory captive-audience meetings. This is a significant one for any employer that uses employee meetings as part of a union-avoidance or communication strategy. Statements predicting the impact of unionization. In the same UPS case, GC Carey has explicitly broken from her predecessor's position under Starbucks/Siren Retail (2024) and will instead urge the Board to reinstate Tri-Cast (1985), a more permissive standard for employer statements predicting what might happen to wages, benefits, or working conditions if a union is voted in. Dress codes. In Starbucks Corporation, the GC argues against the employee-protective standard from Tesla (2022) and asks the Board to reinstate Wal-Mart Stores (2019), which gave employers more room to enforce dress code and uniform policies — including logo and pin restrictions — without running afoul of Section 7. Waiver of the right to bargain. In HPC Industrial Group, the GC has flagged Endurance Environmental Solutions (2024) for reversal and intends to push for a return to the MV Transportation (2019) "contract coverage" standard, which gives more weight to broad management-rights clauses as a basis for unilaterally changing terms and conditions of employment without additional bargaining. Positions the GC Intends to Raise When the Right Case Comes Along These are precedents GC Carey has flagged as targets but hasn't yet had a procedural vehicle to formally argue. Employers should watch for these to surface in future litigation: Bargaining orders without an election. (Cemex Construction Materials Pacific, 2023): The GC wants the Board to abandon the Cemex framework — which allows a bargaining order to issue without a union election in some circumstances — and return to the pre-Cemex combination of Gissel Packing (1969) and Linden Lumber (1971), which is generally viewed as more protective of an employer's right to insist on a secret-ballot election. Duty to bargain before changing existing terms. (Wendt Corporation and Tecnocap, both 2023): These decisions currently require bargaining over changes even where there's longstanding past practice guiding the action. The GC views this as slowing down routine contract administration and wants it revisited. Union dues checkoff after contract expiration. (Valley Hospital Medical Center, 2022): The GC wants to return to the 1962 Bethlehem Steel rule, under which an employer's obligation to deduct union dues from paychecks ends automatically when the collective bargaining agreement (and its checkoff clause) expires — rather than continuing post-expiration as Valley Hospital currently requires. Objector fee disclosures. (UFCW Local 700/Kroger, 2014): The GC intends to argue that unions should have to disclose more detailed information to dues objectors than Kroger currently requires under Beck and California Saw & Knife Works. Protected concerted activity and workplace conduct. (Miller Plastic Products and Lion Elastomers II, both 2023): The GC has specifically called out Lion Elastomers II as extending protection to employee conduct — including conduct that would otherwise be prohibitable — that is only tenuously connected to activity protected under the Act. This case is already pending on remand before the Board. Enhanced/"make whole" remedies. (Thryv, 2022): The GC wants the Board to reconsider the expanded consequential-damages remedy adopted in Thryv, noting that courts have repeatedly cut back on it and that it hasn't yet been tested through a full compliance proceeding. What This Means for Your Organization Every item above requires the Board to actually rule in the GC's favor. National Labor Relations Act will likely stay in flux for months to come. Practical Takeaways (For Now) If your severance agreements, handbook policies, or dress code provisions have been revised in the last two to three years specifically to comply with McLaren Macomb, Stericycle, or Tesla, it may be worth flagging those provisions for a fresh look once the Board rules. This may not mean revising them immediately, but it may help you determine in advance what revisions may be permitted or advisable. If you would rely on mandatory employee meetings as part of your communications strategy during organizing activity, the captive-audience question is one to watch closely, since a reversal would restore an employer tool that's currently off the table, except in a few states that have outlawed captive-audience meetings under state law. If you're a unionized employer with a broad management-rights clause, the outcome in the waiver-of-bargaining cases could materially affect how much unilateral flexibility you have when administering the contract.
August 27, 2026
Labor and Employment
When Safety and Disability Rights Collide: Navigating the ADA in the Workplace
Employers in the construction and manufacturing sectors occasionally confront complex workplace issues involving employees with disabilities, often related to prior injuries, where those conditions may pose safety risks to the employees themselves or to their co-workers. Such situations often involve employees who have valuable skills and experience, but who pose safety risks if they are assigned the full spectrum of tasks under their job description. These employees are protected by rights under the Americans with Disabilities Act (ADA), but their employer has an obligation to prevent them and co-workers from being exposed to known risks of serious physical harm. This balance is not easy to navigate. For HR professionals and in-house counsel, understanding where the ADA draws its lines, and where employers most often cross them, is essential to managing safety-related situations without inviting a discrimination claim. The Direct Threat Standard: The Only Real Safety Exception The ADA doesn't allow employers to exclude an employee from a position, or take adverse action, simply because the employee has a disability that could create risk. The statute carves out a narrow exception: an employer may act if the employee poses a direct threat, which is defined as a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced through reasonable accommodation. That standard has teeth, and each word matters: Significant risk, not a slightly elevated or speculative one Substantial harm, not minor or theoretical injury Assessed through an individualized evaluation, not generalized assumptions about a diagnosis or condition Based on the most current medical knowledge and/or objective evidence, not outdated stereotypes or a manager's gut instinct Considered only after evaluating whether reasonable accommodation would neutralize the risk The EEOC has been consistent for decades: an employer cannot rely on generalizations about a disability, an employee's diagnosis in isolation, or a “better safe than sorry” instinct. The threat has to be real, current, and specific to the individual in the specific job. The Four-Factor Direct Threat Analysis When evaluating whether a genuine direct threat exists, courts and the EEOC look at: Duration of the risk. Is this a temporary condition or an ongoing one? Nature and severity of the potential harm. How serious could the injury be? Likelihood the harm will occur. Is this a real probability or a remote possibility? Imminence of the harm. How soon could the harm materialize? Employers frequently stumble by skipping bullet point one and going straight to bullet point two, imagining worst-case harm, without seriously grappling with likelihood and imminence. A theoretical catastrophic outcome with a low probability of occurring generally will not satisfy the standard. Essential Functions Come First Before any safety analysis, the more fundamental question is whether the employee can perform the essential functions of the position, with or without reasonable accommodation. Safety concerns are frequently really essential function concerns in disguise — an employer worried about a “safety issue” is often actually worried about whether the person can physically or mentally execute a core job duty. This distinction matters procedurally. Essential function analysis and direct threat analysis are related but separate inquiries, and conflating them tends to produce sloppy, defensible-sounding decisions that don't hold up. A written, thorough, and updated job description identifying essential functions, developed before a dispute arises, is one of the most valuable tools an employer can have in either analysis. Objective Evidence, Not Instinct A recurring theme across ADA safety litigation is the demand for objective evidence over subjective judgment. Employers who prevail tend to point to: Documented, specific incidents (falls, near-misses, errors with safety implications) Credible medical opinions tied to the actual essential functions of the job Observable, recent performance or behavioral indicators, not stale history or rumor Employers who lose tend to rely on assumptions: the belief that a particular diagnosis inherently makes someone unsafe, or that a visible mobility aid, medication, or past medical leave signals risk. The ADA's core anti-stereotyping purpose is aimed precisely at that kind of reasoning. Reasonable Accommodation Still Comes First Even where a legitimate safety concern exists, the ADA requires employers to consider whether reasonable accommodation would eliminate or sufficiently reduce the risk before taking adverse action. This might include modified duties, additional safety equipment, adjusted schedules, or reassignment. Only if no accommodation reduces the risk to an acceptable level, and the employer can show that the accommodation would pose undue hardship, does exclusion become legally supportable. Skipping this step, even with good intentions, is one of the most common and costly mistakes employers make. Fitness-for-Duty Exams: A Common Flashpoint Safety concerns often lead employers toward fitness-for-duty (FFD) exams, which are permissible under the ADA only when job-related and consistent with business necessity — generally requiring objective evidence that a medical condition may impair job performance or create a safety risk. A single ambiguous incident, a known diagnosis standing alone, or generalized concern typically won't clear that bar. The request also has to be narrowly scoped to what's needed to assess ability to safely perform the job, not a broad inquiry into unrelated medical history. The Bottom Line The ADA doesn't ask employers to ignore safety. It requires them to prove it, with facts, with process, and with an honest accounting of whether accommodations could have solved the problem. Employers who build that discipline into their practices protect their workforce and substantially reduce their legal exposure at the same time.
August 19, 2026
Labor and Employment
The Hidden HR Issues Lurking in Union Labor Relations
Most labor relations playbooks focus on the visible stuff: election timelines, bargaining sessions, grievance procedures. But the issues that may actually blindside HR teams tend to be the ones nobody charts. Here are five worth a second look. Your frontline managers are the real early-warning system — and they're the least prepared Supervisors are usually the first to notice organizing chatter among employees. Their reactions in the first 48 hours often determine whether a campaign fizzles or accelerates. Yet most manager training still treats labor relations as an infrequent compliance issue rather than a live skill. A supervisor who issues a threat, a promise, or a surveillance-related comment can hand a union an unfair labor practice charge that reshapes the entire election. The fix isn't more policy, it's rehearsed, scenario-based manager readiness training before there's any sign of activity, not after. The captive audience meeting is becoming a legal minefield Thirteen states have now banned mandatory "captive audience” meetings in which company executives speak to groups of employees about the disadvantages of union organization and advantages of company policies. Even more legislation is pending, and litigation is still working through the courts. For any employer operating across state lines, this means the standard anti-organizing company speech playbook — one script, rolled out everywhere — no longer holds. HR needs a jurisdiction-by-jurisdiction approach to employee communication during organizing campaigns, which is a heavier lift than most labor relations budgets currently assume. Organizing is happening somewhere HR can't see it Social media has quietly become the default organizing channel, letting employees coordinate, compare notes, and build momentum well before any petition reaches HR's desk. By the time a campaign becomes visible internally, it may already have the signatures it needs. That shifts the real work upstream, toward genuine listening infrastructure and manager relationships, rather than reactive monitoring once cards start circulating. The NLRB Cemex decision hasn't gone anywhere Despite a more employer-friendly NLRB following recent appointments, the NLRB’s Cemex decision framework, which allows a union to immediately gain recognition via signed authorization cards and can strip an employer of its right to an election if it commits unfair labor practices during a campaign, remains in force. Employers who assume the board's new composition has quietly reset the rules are operating on outdated assumptions. Until Cemex is formally revisited, a single misstep during organizing can still mean losing the election process entirely. Grievance and arbitration data is now a data privacy problem As more states expand employee data protection statutes, the systems HR uses to store grievance files, arbitration records, and investigation notes are coming under new scrutiny. Unionized workplaces generate an unusually sensitive paper trail — medical details, disciplinary history, witness statements — and that data often sits in older case management tools never built with today's privacy requirements in mind. This is quietly becoming as much a compliance exposure as the labor relations issues the data documents. The common thread None of these issues show up on a standard labor relations checklist, and that's the point. They sit at the intersection of HR, legal, IT, and frontline management, which means they tend to fall through the cracks between departments rather than getting owned by any one of them. The employers managing labor relations well in 2026 aren't necessarily the ones with the toughest anti-union posture. They're the ones who've mapped these blind spots and assigned someone to actually watch them.
July 23, 2026
Labor and Employment
Untrained Managers Create Legal Risk: Federal Training Requirements Every Employer Must Follow
Many employment lawsuits I have handled on behalf of employers had something in common: a manager made a deficient decision or failed to act appropriately because no one had trained them properly. Sometimes the decision was a termination made without documentation. Sometimes it was a failure to recognize a harassment complaint and how to respond. Sometimes it was a well-meaning accommodation conversation that crossed a legal line. The lesson is not complicated. Under federal law, your managers are your company’s legal agents. When they act, or fail to act, the law generally treats it as the company acting. Liability flows upward. Training is the mechanism by which you limit that exposure. Title VII of the Civil Rights Act of 1964, along with the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA), prohibits workplace harassment based on protected characteristics. The EEOC’s enforcement guidance makes clear that employers are expected to take reasonable steps to prevent and promptly correct harassment. But the most compelling reason to train managers is a practical defense, not a moral one. Under Faragher v. City of Boca Raton (1998) and Burlington Industries v. Ellerth (1998), the Supreme Court held that an employer may avoid vicarious liability for a supervisor’s harassment — if no tangible employment action resulted — by demonstrating two things: (1) that the employer exercised reasonable care to prevent and correct harassing behavior; and (2) that the employee unreasonably failed to use the employer’s preventive or corrective opportunities. You cannot establish the first prong without documented manager training. Courts consistently look for: A written anti-harassment policy that is distributed to all employees A complaint procedure that bypasses the immediate supervisor when that supervisor is the alleged harasser Regular, documented training for managers on recognizing, reporting, and responding to harassment complaints Training that addresses bystander intervention obligations and retaliation prohibitions Practical Tip Managers must understand that their obligation is not merely to avoid harassing behavior themselves, it is to act when they observe or learn of harassment by others. A manager who witnesses harassment and does nothing creates employer liability, regardless of whether there is a reporting policy. Quick Reference: Federal Manager Training Obligations The table below summarizes the primary federal laws that impose manager training requirements and the key compliance obligations in each area. The Bottom Line for Employers Federal employment law does not require perfection. What it requires is a good-faith, documented effort to comply. In practice, that means written policies, a functional reporting structure, and — above all — managers who are trained, periodically re-trained, and held accountable for what they know. When a lawsuit or agency charge arises, one of the first things plaintiff’s counsel and investigators request is documentation of manager training. The question they are asking is simple: did this company do what a reasonable employer would do to prevent this from happening? Training records, or the absence of them, answer that question before the first deposition is taken. If your organization does not have a structured manager training program addressing each of the areas discussed in this article, now is the time to build one. The investment is modest. The cost of the alternative is not.
June 19, 2026
Labor and Employment
Beyond Attendance: The Legal Duties of Nonprofit Board Members
Serving as an officer or director of a nonprofit organization is both an honor and a serious legal responsibility. Whether your organization is a large regional association or a small community-based nonprofit, the individuals who sit on the board are held to defined legal standards — standards that exist to protect the organization, its members, and the public it serves. This article outlines the core governance obligations that apply to every nonprofit board member, including the three fiduciary duties imposed by state law, the board’s proper role in organizational management, and several practical obligations that are easy to overlook but carry real legal consequences. Modern Governance Demands Active, Informed Leadership Nonprofits today operate in an environment of heightened public scrutiny, legal complexity, and accountability. The days when a board member could fulfill his or her obligations simply by showing up for quarterly meetings and voting on motions are long past. Effective governance now requires directors to be proactive, to engage with the organization between formal meetings, to participate meaningfully in leadership transitions, and to approach every board communication and decision with deliberation. Passive participation is not just ineffective; it can be a legal liability. A director who sits back, defers entirely to others, and casts uninformed votes risks violating the very duties assumed upon joining the board. The Board Governs — It Does Not Manage One of the most important distinctions in nonprofit governance is the line between policy and management. The board of directors is the organization’s governing body, with ultimate responsibility for its mission and direction. But that responsibility does not extend to the day-to-day administration of the organization. Operational decisions —staffing, program delivery, vendor relationships, and the like — are properly delegated to paid staff, designated committees, or empowered officers. This principle holds even for smaller nonprofits that lack a professional staff. The board’s role is to set policy and ensure that results align with the organization’s mission and governing documents. When boards stray into micromanagement, they create confusion, undermine staff authority, and expose themselves to unnecessary risk. The best boards define clear boundaries, delegate appropriately, and hold leadership accountable for outcomes. The Three Fiduciary Duties State law imposes three legally enforceable fiduciary duties on every officer and director of a nonprofit organization: the duty of care, the duty of loyalty, and the duty of obedience. These duties are not optional — they cannot be waived by agreement, and they apply regardless of whether the organization is large or small, well-funded or volunteer-run. Every decision made in the course of board service should be evaluated against all three. Duty of Care: Be Informed and Engaged The duty of care requires directors to exercise the same ordinary and reasonable diligence that a prudent person would apply in similar circumstances. In practice, this means directors must arrive at meetings prepared, ask questions when something is unclear, seek out information independently when necessary, and engage substantively in board deliberations. A director who attends meetings without reviewing materials in advance, who relies entirely on the representations of other board members without independent inquiry, or who votes yes or no simply to go along with the room is not meeting this standard. The duty of care is an individual obligation; each director is personally responsible for being informed. Duty of Loyalty: Put the Organization First The duty of loyalty requires that when a director acts in his or her capacity as a board member, that director’s allegiance must be undivided and directed entirely to the organization’s interests. Personal interests, outside business relationships, and affiliations with other organizations must not influence board decisions. This duty encompasses two related obligations. First, directors must avoid actual conflicts of interest — situations in which personal gain could be derived from an organizational decision. Second, and equally important, directors must avoid even the appearance of conflicts of interest. The credibility of a nonprofit depends in large part on public trust, and that trust is damaged when there is any reasonable basis for questioning whether a board member’s decisions were made for the right reasons. Organizations should have a written conflict-of-interest policy, and directors should be prepared to disclose and recuse themselves where appropriate. Duty of Obedience: Know and Follow Your Governing Documents The duty of obedience requires directors to act in accordance with the organization’s articles of incorporation, bylaws, mission statement, and any other governing documents, as well as applicable federal, state, and local law. This is not a passive obligation. Directors are expected to have read and understood the organization’s governing documents, and to act consistently with them, even when a director might personally have approached a matter differently. If governing documents are outdated, unclear, or inconsistent with current law, the appropriate response is to pursue a proper amendment, not to ignore the documents or work around them. Counsel can assist with reviewing and updating governing documents to ensure they reflect the organization’s current operations and legal obligations. Additional Obligations Individual Accountability for Fellow Directors’ Conduct Board membership is not a passive credential. Directors have an individual obligation to respond when they become aware that a fellow director, or an officer, is engaging in conduct that is illegal, in violation of fiduciary duties, or otherwise contrary to the organization’s interests. Awareness without action can itself give rise to personal liability. What constitutes an adequate response will depend on the circumstances, but in serious cases it may require raising the issue formally at a board meeting, consulting with legal counsel, or escalating the matter through appropriate channels. Directors who simply look away when misconduct is apparent do so at their own legal risk. Confidentiality: An Absolute Obligation Board deliberations are confidential. Information discussed in the course of board business — whether in formal meetings or in communications among directors — may not be shared with individuals who are not part of the board or otherwise properly within the organization’s governance structure. This obligation applies regardless of how a vote came out and regardless of whether the director agreed with the board’s decision. The reason for this rule is practical as well as legal. Open and candid board discussion depends on the mutual understanding that what is said in the boardroom stays there. When confidentiality is breached, even informally, even with good intentions, it chills future deliberation and can seriously damage the organization. Directors should treat all board communications as confidential by default, and should decline to discuss board matters with family members, professional colleagues, or anyone else outside the governance structure. Written Communications: Assume Everything Is Public In litigation and regulatory proceedings, written communications are among the first materials sought in discovery which includes emails, text messages, board messaging platforms, and any other written communication, regardless of how informal the channel. There is, in practical terms, no such thing as a private electronic communication for a nonprofit director. Directors should bring the same care to their written communications that they bring to formal board proceedings. This means avoiding emotional or inflammatory language, refraining from personal attacks, and thinking carefully before committing anything to writing that would be embarrassing, misleading, or legally problematic if it later appeared in a courtroom or regulatory hearing. When in doubt, a phone call is often the better choice. And when written communication is particularly sensitive, having it reviewed by counsel before sending is a worthwhile precaution. Nonprofit Directors Are Accountable to the Public Unlike the directors of a for-profit corporation, who owe their primary duty to shareholders, nonprofit directors operate in a context of broader public accountability. The tax-exempt status and public-benefit mission of a nonprofit organization mean that its governance is, in a meaningful sense, a matter of public interest. This is the foundation of many of the rules that apply to nonprofits and their directors, and it is why the standards for nonprofit governance are taken seriously by regulators, courts, and the communities these organizations serve. Directors who internalize this principle — who understand that their role is not simply to serve the membership but to advance a mission for the broader public good — tend to govern more effectively and with greater integrity. A Final Word The legal obligations of nonprofit board service are real, and they apply from the moment a director takes office. But they are not burdensome for directors who approach the role with the seriousness it deserves. Directors who stay informed, act in the organization’s best interest, follow the governing documents, communicate carefully, and hold themselves and their colleagues accountable will, in virtually every case, meet their legal obligations and serve their organization well.
May 20, 2026
Labor and Employment
Non-Discrimination Training: What In-House Counsel and HR Executives Need to Do Now
Non-discrimination training is no longer simply a best practice; it is increasingly a legal imperative. Across the country, states, and municipalities are imposing affirmative obligations on employers to implement, document, and periodically refresh training programs to prevent workplace discrimination and harassment. For companies operating in multiple jurisdictions, the array of requirements presents both compliance complexity and potential litigation risk. This advisory is directed to in-house legal counsel and human resources executives. Its purpose is straightforward: if your organization does not currently have a structured, recurring non-discrimination training program in place, you need one — and the time to act is now. The Legal Landscape: A Jurisdiction-by-Jurisdiction Overview The following summary reflects the current state of non-discrimination training requirements and formal recommendations across key jurisdictions. This is not an exhaustive survey, but it illustrates the breadth of regulatory attention employers face. California California imposes an affirmative duty on employers to take reasonable steps to prevent and promptly correct unlawful discrimination and harassment. While the statute does not establish a single universal periodic training mandate for all protected categories, it does require certain employers to provide regular sexual harassment training. Critically, California law also requires that any training program leading to employment be administered in a nondiscriminatory manner. Employers with California operations who are not already conducting regular, structured anti-discrimination training should treat this as a compliance gap requiring immediate correction. New York City The New York City Human Rights Commission recommends that employers implement antidiscrimination policies specifically addressing gender identity and expression and provide ongoing training for employees and agents. In the context of New York City’s historically aggressive enforcement posture—including substantial administrative penalties and individual liability exposure—these recommendations carry significant practical weight. In-house counsel should treat the commission’s guidance as a strong indicator of what regulators will scrutinize in the event of a complaint. Philadelphia The Philadelphia Fair Practices Ordinance guidance recommends that employers provide training to managers and employees before problems arise—particularly regarding gender identity and expression. This proactive framing is significant: Philadelphia regulators are signaling that reactive training (i.e., training only after a complaint is filed) is insufficient. Employers with Philadelphia operations should build training into their standard onboarding and periodic compliance calendars. San Francisco San Francisco imposes some of the most explicit affirmative obligations. The San Francisco Human Rights Commission requires all agencies, businesses, organizations, city contractors, and city departments to clearly communicate the city’s non-discrimination laws. It further recommends ongoing training for all management, employees, and volunteers on gender identity issues. Washington The Washington State Human Rights Commission recommends that employers educate all employees about non-discrimination policies, with particular attention to gender identity and expression. The commission further suggests that employers consider bringing in outside consultants to provide specialized training on gender identity sensitivity and awareness. For organizations with a significant Washington workforce, this consultant recommendation reflects regulatory awareness of the limits of generic training—and should prompt a review of whether your current training program is sufficiently tailored. District of Columbia The District of Columbia mandates compliance with non-discrimination laws and requires that employer programs contribute to the elimination of sex stereotyping and barriers to employment. While current guidance does not specify a universal periodic training interval for all employers, the District’s substantive mandate is clear, and employers operating there should not interpret the absence of a specific training schedule as an option to forgo training altogether. Why “Recommendations” Carry Real Legal Risk In-house and outside legal counsel sometimes draw a sharp distinction between legal requirements and regulatory recommendations, treating the latter as aspirational and optionally advisable. In the employment discrimination context, that distinction can be misleading and potentially costly. When a regulatory body with enforcement authority—such as the New York City Human Rights Commission, the Philadelphia Commission on Human Relations, or the San Francisco Human Rights Commission—issues guidance recommending employer training, that guidance typically reflects the standard against which the agency will measure employer conduct when adjudicating a complaint. An employer who ignored formal training guidance from an enforcement agency will face a significantly more difficult defense posture than one who followed it. Beyond agency enforcement, you should consider the evidentiary implications in civil litigation. Plaintiffs’ counsel regularly introduce evidence of an employer’s failure to conduct training, or to conduct it adequately, as evidence of a discriminatory or hostile work environment. Courts have consistently recognized training programs as a component of an employer’s affirmative defense in harassment cases. The absence of training, by contrast, can undermine an employer’s ability to invoke the Faragher-Ellerth defense or its state-law equivalents. A Practical Action Plan for Legal Counsel and HR The following steps represent a baseline compliance framework for organizations operating in one or more of the jurisdictions addressed above. Legal counsel and HR executives should assess their current programs against each item. Conduct a Jurisdictional Audit Map your workforce to the specific jurisdictions where employees work or are supervised. For each jurisdiction, identify applicable statutes, ordinances, and agency guidance. Pay particular attention to gender identity and expression requirements, which appear consistently across the surveyed jurisdictions. Establish a Training Calendar Several jurisdictions emphasize ongoing or periodic training—not one-time programs. Build a recurring training schedule into your compliance calendar, with defined intervals for managers and employees. Tie training events to onboarding, annual compliance cycles, and promotion into supervisory roles. Differentiate Manager and Employee Training Management-level training should address investigation obligations, reporting duties, and liability implications that differ from general employee instruction. Several jurisdictions specifically call out training for managers and agents, ensure your program reflects this distinction. Address Gender Identity and Expression Explicitly Every jurisdiction reviewed here specifically references gender identity and expression as a training focus. Ensure your curriculum addresses these protected categories with specificity, not merely as a line item in a broader protected-class list. Consider Specialized Consultants Washington State’s recommendation that employers engage outside consultants for gender identity training is worth noting for employers in any jurisdiction. Where internal training capacity is limited, or where a workforce has complex dynamics, outside expertise can improve both the quality and the credibility of your training program. Document Training records should be maintained systematically. Document attendance, training content, delivery dates, and any acknowledgment forms signed by participants. In the event of an administrative complaint or civil litigation, contemporaneous documentation of a robust training program is among the most valuable evidence an employer can produce. The Bottom Line Non-discrimination training requirements are not static, and the regulatory trend is clearly toward more specificity, more frequency, and more accountability—not less. Employers who treat training as a one-time orientation task, or who have allowed their programs to go stale, are accumulating legal exposure that is relatively inexpensive to address proactively and potentially very costly to address reactively. In-house counsel should elevate this issue with HR leadership and, where appropriate, the executive team. A well-designed, regularly delivered, and carefully documented training program is one of the most straightforward investments a company can make in its employment law compliance infrastructure—and one of the most defensible positions it can establish when regulatory or litigation exposure materializes. Employers should consult qualified employment counsel to evaluate compliance obligations applicable to their specific circumstances and jurisdictions.
April 21, 2026
Labor and Employment
Continued Disparities in Joint-Employer Status Laws
Updated on April 23, 2026 On April 22, 2026, the U.S. Department of Labor announced a plan to create one nationwide standard from multiple federal laws for when two or more employers can be jointly liable for workplace offenses. The proposed rule, as published in the Federal Register, would eliminate the current disparate treatment of joint employer status under various federal laws, including the Fair Labor Standards Act, the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act. The proposed singular rule would reduce the previous “economic realities” tests to just four criteria: (a) the power to hire or fire, (b) the ability to supervise or control a worker's schedule, (c) the power to determine the rate and method of payment to the worker, and (d) maintaining a worker's employment records. The new rule would not eliminate the disparities present in state laws discussed in the article below but would provide important clarification and simplification of federal laws on joint employer status. The new rule could also provide more guidance which may potentially resolve conflicting rulings in federal courts. Federal law provides baseline joint‑employer standards under the National Labor Relations Act (as interpreted and enforced by the National Labor Relations Board) and the Fair Labor Standards Act (as interpreted and enforced by the U.S. Department of Labor). States, however, have increasingly adopted their own joint‑employer rules, often broader and more worker‑protective. The result is an assortment of rules in which a business may be a joint-employer under state law but not under federal law or potentially even under the Fair Labor Standards Act but not the National Labor Relations Act. National Labor Relations Act and National Labor Relations Board: Current Law The operative rule is the 2020 Trump-era “direct and immediate control” standard. The following is a summary of the key developments that led to the current framework. The 2020 standard established that to be deemed a joint employer, an entity must exercise "substantial direct and immediate control" over essential terms and conditions of employment. Workers were required to demonstrate this level of control by another entity over another entity's employees. On October 27, 2023, the NLRB published a final rule that rescinded and replaced the 2020 rule. The proposed new rule would have dramatically broadened the standard by establishing that two or more entities may be considered joint employers if each: Has an employment relationship with the employees; and Shares or codetermines one or more of the employees' essential terms and conditions of employment. On March 8, 2024, Texas federal judge J. Campbell Barker vacated the 2023 rule, holding that the test was unlawfully broad, as it would have allowed an entity to be deemed a joint employer with or without any exercise of meaningful control over the relevant employees' terms and conditions of employment. As the 2023 rule never took effect, the prior 2020 rule remained the operative rule. The NLRB formalized this by revising its regulations, effective February 27, 2026, to replace the vacated regulatory text with the 2020 rule. The NLRB had filed an appeal of the Texas court's decision in 2024, but given the change in administration and the formal February 2026 withdrawal of the 2023 rule, the broader Biden-era standard appears definitively off the table for now. Fair Labor Standards Act and U.S. Department of Labor: Current Law Similar “back and forth” changes have occurred in the U.S. Department of Labor’s joint-employer criteria. The DOL’s current joint-employer criteria under the Fair Labor Standards Act (FLSA) and other federal employment laws hinge not only on whether two or more businesses, through association, share "substantial direct and immediate control" over an employee's essential terms and conditions—specifically hiring, firing, discipline, supervision, and pay—but also on the “economic realities” of the relationship of each employer to the employees. The current DOL focus is on whether a business "meaningfully affects" a worker's employment. Key Aspects of Joint Employment (FLSA/DOL) Influence Over Essential Terms and Conditions: Includes hiring, firing, discipline, supervision, and pay. Horizontal Joint Employment: Exists when an employee works for two separate employers who are sufficiently associated (e.g., shared employees, common management). Hours worked for both must be combined for overtime pay. Vertical Joint Employment: Occurs when an employee of an intermediary (like a staffing agency) is economically dependent on another employer (the client). Key Considerations Control vs. Association: The test is not just about ownership but whether they share control. Overtime Liability: Joint employers are jointly responsible for compliance, including overtime, for all hours worked. Key Aspects of DOL Joint-Employer Criteria Control and Association: A joint employment relationship exists when employers share control over essential terms and conditions of employment, such as hiring, firing, payroll, and supervision. Totality of the Circumstances: No single factor determines the status; it is based on the entire relationship, including shared facilities, overlapping management, and interconnected business operations. Shared Personnel: An employee works for two different entities, such as two restaurant locations, in the same workweek. Coordinated Operations: Employers share managers, a kitchen, or other resources. Economic Reality: The worker is economically dependent on both potential joint employers. This pre-2020 FLSA standard now governs wage-and-hour joint-employer liability, particularly for franchisors, staffing agencies, and companies using third-party contractors. Different Applications of the FLSA by Different Courts In 2024, the Supreme Court’s decision in Loper Bright Enterprises v. Raimundo overturned the legal doctrine known as Chevron deference, meaning courts now exercise independent judgment in interpreting statutes and do not defer to agency interpretations simply because a statute is ambiguous. However, prior cases upholding specific agency actions remain good law. As a result, while DOL regulations and guidance remain influential, federal courts now independently interpret the FLSA’s joint-employer provisions, focusing on statutory text and the economic realities of the employment relationship. Consequently, employers in different federal court jurisdictions may be subject to different joint-employer criteria. Patchwork of Differing State Laws State joint-employer laws and regulations vary substantially across states. Some states coincide with or expressly follow federal standard. Other states have adopted independent and more expansive tests, with the result that some employers that are not joint employers under one or both federal laws are joint employers under one or more state laws. The broader state tests include criteria such as: Economic dependence frameworks Statutory expansions targeting industries such as franchising or subcontracting The result is a fragmented legal landscape where joint‑employer status depends heavily on jurisdiction, industry, and the specific statute(s) that apply to the employer’s operations. Industry‑Specific Joint‑Employer Rules Some states impose joint‑employer obligations in targeted sectors: Construction (e.g., wage theft statutes making general contractors liable for subcontractor wages) Janitorial services (e.g., California’s Property Service Workers Protection Act) Agriculture (e.g., state migrant worker protections) Fast food (e.g., California’s recent reforms) Federal law does not have comparable industry‑specific joint‑employer statutes. Key Practical Takeaways Under the NLRA: The narrower 2020 standard applies, requiring actual, substantial, and direct control over employment terms to establish joint-employer status. Under the FLSA: A similar pre-2020 standard governs, but joint-employer liability for wage-and-hour purposes may be more easily established based on potential or indirect control, considering a variety of relevant facts. Businesses that utilize independent contractors, including franchise business models, should remain wary of these evolving standards. This is an area of active legal and regulatory change, so consulting an employment attorney for advice specific to your situation is strongly recommended, along with regular review of federal and state laws that may apply to your operations.
March 24, 2026
Labor and Employment
A Practical Guide to Collective Bargaining: Strategies, Obligations, and Best Practices for 2026
Collective bargaining remains one of the most important processes governing labor–management relations in the United States. For organizations preparing for negotiations in 2026 and beyond, the key to success is understanding not only the legal framework, but also the strategy, preparation, and interpersonal dynamics involved. This outline walks through the essentials of collective bargaining under the National Labor Relations Act (NLRA), along with practical techniques, negotiation tactics, and preparation tips drawn from decades of labor‑relations practice. What Is Collective Bargaining? Collective bargaining is the structured process by which an employer and a union negotiate wages, hours, benefits, and working conditions of employees represented by the union. The outcome is a Collective Bargaining Agreement (CBA), a binding contract that sets those terms for a defined period. The process is regulated by the National Labor Relations Act, which preempts state labor laws for private employers. Though every negotiation is unique, all follow a similar progression. Collective bargaining typically unfolds in several key phases: Preparation - Both sides analyze the existing CBA, gather economic and operational data, and develop proposals. Negotiation - Each party presents its proposals, discusses priorities, and responds to the other side’s demands. Agreement - Once consensus is reached, the parties draft a written agreement or memorandum of understanding. Ratification - The union’s membership votes on the agreement, and the employer formally approves it. Implementation The new CBA takes effect, often retroactively if negotiations extend past the previous contract’s expiration. The Legal Duty to Bargain Section 8(d) of the NLRA requires both parties to meet at reasonable times and negotiate in good faith over mandatory subjects such as wages, hours, and working conditions. Importantly, neither party is required to agree to any specific proposal, nor must they make a concession. Types of Bargaining Subjects Mandatory Mandatory subjects are those that “vitally affect” wages, hours, or working conditions. Examples include: Compensation and incentive pay Pension and benefit plans Paid and unpaid leave Discipline and discharge Seniority Work rules Grievance procedures Employers may not make unilateral changes to mandatory subjects without bargaining. Permissive Permissive subjects are relevant, but not central to working conditions They include definition of the bargaining unit, internal union procedures, and terms for non-unit employees. Parties may negotiate these, but neither side can be forced. Illegal Illegal subjects are topics prohibited by law, and include closed shop provisions, hot-cargo agreements, and discriminatory clauses based on race, religion, sex, age, disability, national origin, or union activity. Understanding these categories helps both sides stay compliant and focused on productive negotiation topics. Good Faith vs. Bad Faith Bargaining Good-faith bargaining is legally required and is the foundation of the negotiation process. It requires sincerity, openness, and a genuine desire to reach an agreement. What Good‑Faith Bargaining Looks Like: Meeting at reasonable times Making concessions and counteroffers Providing relevant information upon request Engaging in meaningful discussion Drafting written agreements when terms are reached Importantly, good faith does not require either party to accept proposals or make concessions they find unacceptable. Automatic Violations of Good Faith Certain actions are considered violations regardless of intent: Making unilateral changes to mandatory subjects before the impasse Bargaining directly with employees instead of the union Refusing to meet or discuss mandatory subjects Refusing to sign a written agreement reached at the table Other Signs of Bad Faith The National Labor Relations Board may also infer bad faith from patterns of behavior, such as: Delaying tactics Unreasonable demands Withdrawing previously agreed‑upon terms Failing to designate a representative with authority to bargain Attempting to bypass the union Good‑faith bargaining is not just a legal requirement—it is essential to building trust and reaching durable agreements. The Duty to Provide Information Under the National Labor Relations Act, both the employer and the union must provide information relevant to bargaining, resolution of grievances, or contract administration. Failure to provide information can result in: Unfair labor practice charges Conversion of an economic strike to an unfair labor practice strike Delayed or invalid impasse claims Even vague or burdensome requests may need to be answered, and requests cannot be ignored simply because they involve confidential information. Preparing for Negotiations Preparation is the backbone of successful bargaining. Management’s team typically includes: A chief spokesperson Financial and cost specialists HR representatives Operations experts A note‑taker Decision makers with authority The NLRA prohibits either side from interfering with the other’s choice of representatives, and employers cannot limit the size of a union bargaining team. Economic data collection is essential. Key sources include: Bureau of Labor Statistics (CPI, wages, employment data) Bloomberg Law contract settlement databases Local and industry CBA comparisons Teams should identify desired changes, anticipate union demands, prioritize issues, and prepare arguments with supporting data. Negotiation Strategies and Tactics Collective bargaining is both a legal process and a strategic exercise. Successful negotiators understand the unwritten rules, anticipate the other side’s priorities, and maintain discipline throughout the process. Experienced negotiators follow unwritten norms, such as: Neither party expects to get everything it asks for Parties begin with broad proposals and refined goals Early progress often focuses on non‑economic issues Major issues are typically addressed closer to contract expiration Common Bargaining Styles Auction bargaining - High opening proposals lowered incrementally. Trade‑off bargaining - Movement on one issue in exchange for concessions on another. Blue‑sky bargaining - Unrealistic initial demands with slow movement. Illegal Bargaining Styles Boulwarism - Presenting a single “fair, firm offer” and refusing to negotiate. Surface bargaining - Pretending to bargain with no real intent to reach an agreement. Experienced and successful negotiators operate from a realistic, “give and take” perspective that often involves some of the following tactics. Acknowledge the other party’s views Use real‑world examples Highlight points of agreement Ask open‑ended questions Keep negotiations fair, calm, and professional Build trust, rapport, and momentum Running Effective Bargaining Sessions The first meeting sets the tone and bargaining climate. Each party makes an opening statement, establishes schedules and routines, and exchanges initial proposals. Unions typically present more than they expect to receive, setting room for concessions. At the next session— usually the second meeting— the parties clarify demands, understand priorities, and begin evaluating economic impacts. This is critical for setting expectations and building negotiation strategy. For subsequent sessions as the deadline approaches sessions become more frequent, offers and counteroffers accelerate, committees may handle complex issues, and tentative agreements (TAs) are recorded clause-by-clause. Best Practices: Tips, Tricks, and Traps Collective bargaining has elements of skill. Skilled negotiators will recognize the other party’s perspective, provide clear explanations and supporting data, often ask open-ended questions, keep discussions focused and productive, and importantly remain calm and respectful. The most effective teams are well‑prepared, unified, and strategic in how they present and defend their proposals. Here are some hints and tips: Treat all early agreements as tentative until the full contract is settled. Document everything—written summaries, session notes, and caucus discussions. Never lose your temper, even if provoked intentionally. Avoid claiming you “cannot afford” a proposal, which could obligate financial disclosure. Caucus frequently to regroup or strategize. Build momentum through small agreements. Always preserve the authority and credibility of the chief negotiator. Advanced Negotiation Techniques Certain techniques may be useful for resolving conflicts and finding common ground. These include: (a) caucuses, which are private discussions of each negotiating team that are used to refine proposals, assess costs, or cool tensions; and (b) so-called “sidebar” meetings, which are private meetings between lead negotiators to break logjams or explore sensitive options. Trust is essential. If negotiations stall, the Federal Mediation and Conciliation Service (FMCS) can facilitate resolution by suggesting compromises, tradeoffs, or settlement formulas. Understanding Impasse An impasse occurs when good‑faith negotiations no longer offer a realistic path to agreement. When negotiations stall, executives and in-house counsel must navigate a complex landscape of legal standards, operational risks, and strategic considerations. Understanding impasse and mediation is essential to avoiding missteps that could escalate conflict or trigger legal exposure. After impasse is declared: Employers may implement their last, best, and final offer—but only positions already proposed before impasse Strikes and lockouts may occur The duty to bargain is suspended, not terminated Impasse may be broken by events, such as new proposals, the passage of time, strikes, or changed economic conditions. Business Decisions and “Effects” Bargaining Employers must bargain over employment-related decisions such as layoffs or production quotas, but not over core entrepreneurial decisions like closing a business unit. However, even when not required to bargain the decision, employers must bargain over the effects of that decision—timing, transition issues, severance, etc.—at a meaningful time. Key Questions for Upcoming Negotiations Collective bargaining is one of the most consequential legal processes an organization undertakes. It shapes labor stability, operational flexibility, cost structure, and long‑term workforce relations. For executives and in‑house counsel, the goal is not simply to negotiate a contract — it is to manage legal exposure, protect enterprise interests, and ensure compliance with federal labor law at every stage. Below are some key questions that may help achieve these goals. What are the union’s likely demands? Which CBA provisions are most problematic for management? What changes does the company desire? What internal or external constraints shape negotiation limits? Final Thoughts Effective collective bargaining is both an art and a science—grounded in legal requirements but shaped by preparation, data, trust, communication, and strategy. With thoughtful planning and disciplined execution, organizations can reach agreements that are fair, workable, and sustainable for both labor and management.
February 20, 2026
Labor and Employment
The EEOC’s New Posture on DEI Under Chair Andrea Lucas: What Executives and Corporate Counsel Need to Know
The landscape of workplace civil rights enforcement is shifting — and fast. With Andrea Lucas now serving as Chair of the U.S. Equal Employment Opportunity Commission (EEOC), organizations should expect a markedly different approach to diversity, equity, and inclusion (DEI) initiatives. EEOC Chair Lucas has long expressed concerns that many DEI programs, as commonly implemented, cross the line into unlawful employment discrimination. Recent public statements and actions by the EEOC under her leadership make clear that this is no longer a theoretical stance — it is now an enforcement priority. A New Enforcement Philosophy: “Colorblind” Civil Rights Compliance Public reporting indicates that Lucas has consistently advocated for what she describes as a “colorblind” approach to civil rights enforcement, arguing that some DEI initiatives risk unlawful “reverse discrimination”. She has also emphasized heightened scrutiny of practices that classify or treat employees differently based on protected characteristics — even when the stated purpose is to advance diversity. This represents a significant departure from the more permissive posture many organizations have relied on in designing DEI programs over the past decade. Recent EEOC Actions Signal a Clear Direction In March 2025, the EEOC — under Lucas’s leadership as then-temporary Chair — sent letters to 20 major law firms requesting detailed information about their DEI related employment practices. The letters expressed concern that certain DEI programs may involve: Unlawful disparate treatment in hiring, promotion, or compensation Limiting or segregating employees based on protected traits Classifying employees in ways that could violate Title VII This is one of the most direct and public signals to date that the EEOC intends to scrutinize DEI programs not only in theory but in practice. Statements by EEOC Chair Andrea Lucas in Her Recent Reuters Interview Recent reporting from Reuters provides the most transparent window yet into Andrea Lucas’s enforcement philosophy and her expectations for corporate DEI programs. In her December 2025 interview with Reuters, Lucas made several notable statements that senior executives and corporate counsel should pay close attention to: DEI Programs Are Facing a “Reckoning” Lucas told Reuters that federal inquiries into corporate DEI programs are already underway and represent a “major shift in civil rights enforcement” under the current administration. A Shift Toward a More Conservative Interpretation of Civil Rights Law Lucas described her approach as “a more conservative view of civil rights,” emphasizing that the EEOC will prioritize cases involving discrimination against any protected group — including white men. This signals a significant pivot from prior enforcement patterns. Explicit Warning That DEI Programs Using Protected Traits May Be Unlawful According to Reuters reporting, Lucas warned that DEI initiatives that explicitly use race, sex, or other protected characteristics as “motivating factors” in employment decisions could violate Title VII and face enforcement action. Lucas expressed concern that many corporate DEI programs may cross the line into unlawful disparate treatment, even when the intent is remedial or inclusion‑focused. Enforcement Actions Are Already in Motion Lucas confirmed that the EEOC has already begun federal inquiries into corporate DEI practices, signaling that this is not merely a policy stance but an active enforcement priority. What This Means for Employers For senior executives and corporate legal counsel, the implications are significant. The EEOC’s new posture does not prohibit DEI efforts — but it greatly restricts the use of commonly implemented DEI efforts and does require a recalibration of how those efforts are structured, documented, and communicated. Key Risk Areas Organizations should pay particular attention to: Hiring or promotion goals tied to specific demographic categories. These may be interpreted as quotas or preferential treatment. Programs limited to certain protected groups. Even well‑intentioned initiatives (e.g., leadership programs for women or minorities) may be scrutinized for exclusionary effects. Use of demographic data in ways that influence employment decisions. Lucas has signaled concern about any practice that treats demographic characteristics as determinative factors. Supplier diversity requirements that impose demographic criteria. These may also fall within the scope of EEOC review. Strategic Steps for Organizations Executives and counsel should consider the following actions: Conduct a Privileged Audit of DEI Programs Review all DEI initiatives — hiring programs, mentorships, leadership pipelines, public statements, web pages, recruiting and marketing literature, supplier diversity, and training — to identify potential disparate‑treatment risks. Reframe DEI Around Compliance‑Safe Principles Focus on:Equal opportunity Barrier removal Inclusive culture Skills-based hiring Broad outreach and recruitment These approaches align with Title VII and avoid the pitfalls of demographic preferences. Ensure Documentation Reflects Legally Defensible Intent Policies, training materials, and internal communications should emphasize:Nondiscrimination Equal treatment Voluntary participation Business‑driven rationales Prepare for Potential EEOC Inquiries Given the agency’s recent outreach to law firms, other industries may be next. Organizations should be ready to respond quickly and accurately to information requests. The Bottom Line Andrea Lucas’s recent statements to Reuters confirm a decisive shift in the EEOC’s approach to DEI. The agency is moving from passive observation to active enforcement. Organizations that proactively align their DEI programs with Title VII’s equal‑treatment framework will be best positioned to mitigate regulatory and litigation risk.
January 20, 2026
Labor and Employment
The Amazon v. PERB Decision: Reaffirming Federal Supremacy in Labor Law
The November 26, 2025, preliminary injunction issued by Judge Eric R. Komitee of the U.S. District Court for the Eastern District of New York in Amazon Services v. New York State Public Employment Relations Board represents a critical reaffirmation of federal preemption doctrine in American labor law. The decision found that amendments to the New York State Employment Relations Act (SERA) are preempted under the Supreme Court's holding in San Diego Building Trades Council v. Garmon. The Constitutional Context At the heart of this dispute lies a fundamental question about the structure of American governance: when a federal agency faces operational paralysis, can states step in to fill the regulatory void? New York's September 2025 amendments to SERA attempted to do precisely that, granting the state's Public Employment Relations Board (PERB) jurisdiction over private-sector labor disputes traditionally handled by the National Labor Relations Board (NLRB). The legislation emerged from a genuine governance crisis — following President Trump's removal of Board Member Gwynne Wilcox, the NLRB was left without the quorum necessary to issue decisions on union representation petitions or unfair labor practice charges. Governor Kathy Hochul signed the amendments as a stopgap measure, arguing they were necessary to protect workers' rights during federal dysfunction. The law would have allowed PERB to exercise NLRB powers unless and until the federal board obtained a court order establishing jurisdiction — effectively reversing the presumption of federal authority that has governed labor relations for decades. The Garmon Doctrine: A Pillar of Labor Law Judge Komitee's decision rested heavily on the doctrine established in the Supreme Court's 1959 Garmon decision, which holds that when an activity is even arguably subject to the National Labor Relations Act, states must defer to the NLRB's exclusive competence. This principle reflects a deliberate congressional design: to create uniform national labor policy administered by an expert federal agency rather than allowing potentially conflicting state regulations. The Garmon preemption doctrine applies not only when the NLRB has actively asserted jurisdiction, but also when the board has declined to exercise its authority. This breadth serves a critical purpose — preventing the very jurisdictional conflicts and regulatory uncertainty that New York's law threatened to create. As the court emphasized, states cannot regulate labor activities simply because the federal agency is temporarily unable to act. The Court's Rejection of "Unique Circumstances" New York and the Amazon Labor Union advanced a novel argument: that the unprecedented circumstances of the NLRB's lack of a quorum, combined with the constitutional challenge to board members' removal protections, justified an exception to traditional preemption principles. The district court firmly rejected this position, holding that temporary federal dysfunction cannot justify state legislation that directly contradicts Supreme Court precedent. This rejection is significant for several reasons. First, it establishes that preemption is not contingent on federal capacity but on federal authority. The NLRA remains the supreme law governing private-sector labor relations regardless of whether the NLRB can currently adjudicate cases. Second, it prevents states from using administrative or political crises as opportunities to expand their regulatory reach into areas Congress has reserved for federal control. Third, it maintains the principle that doctrinal exceptions must come from the Supreme Court, not from state legislatures responding to expedient circumstances. Implications for American Federalism The Amazon decision arrived at a moment when multiple states — including California, New Jersey, and Massachusetts — have proposed or enacted similar legislation attempting to fill the NLRB's vacuum. Judge Komitee's opinion serves as a warning shot to these efforts, reasserting the primacy of federal labor law even during periods of federal incapacity. While states traditionally possess broad police powers to protect workers' health and safety, labor relations have long been recognized as requiring national uniformity. The New York court's decision reinforces the principle that constitutional preemption doctrines are not suspended during administrative crises, however genuine those crises may be. Practical Consequences For employers like Amazon, the injunction prevents the nightmare scenario of navigating conflicting state and federal labor systems. Without the injunction, companies operating across multiple states could face dramatically different legal frameworks for identical conduct, undermining the uniformity that the NLRA was designed to achieve. For workers and unions, the decision is more complicated. It removes a potential avenue for expedited resolution of labor disputes at a time when the NLRB remains effectively paralyzed. Looking Forward The Amazon decision is unlikely to be the final word. New York will likely appeal to the Second Circuit, where the case could produce important appellate guidance on the application of preemption doctrine in contexts of federal administrative failure. Moreover, the underlying constitutional questions about NLRB members' removal protections remain pending before the Supreme Court, and their resolution could reshape the landscape that produced this controversy. Conclusion Judge Komitee's ruling in Amazon Services v. New York State Public Employment Relations Board is important because it reaffirms principles of federal preemption at a moment when those principles faced their most serious state-level challenge in decades. The decision prioritizes constitutional structure and legal consistency over pragmatic problem-solving, holding that even genuine governance crises cannot justify state encroachment into areas of exclusive federal jurisdiction. For labor law specifically, the decision maintains the NLRA's primacy and the Garmon doctrine's vigor, ensuring that private-sector labor relations remain governed by uniform national standards rather than fragmenting into state-by-state variations The decision leaves unresolved the deeper problem it illuminates: what happens when the federal government's institutional mechanisms fail, yet constitutional doctrine prohibits states from filling the void? This question extends beyond labor law to implicate numerous regulatory domains where federal preemption is broad but federal capacity is fragile. Judge Komitee's opinion answers the legal question decisively, but the practical and political challenges it exposes will likely persist long after this litigation concludes.
December 19, 2025
Labor and Employment
Increasing Minimum Wages: Emerging Trends Across the U.S.
The conversation around minimum wage in the United States has gained renewed momentum in recent years. While the federal minimum wage has remained unchanged since 2009, states and municipalities have taken the lead in implementing wage increases to reflect the rising cost of living and economic shifts. State-Level Action in the Absence of Federal Change With the federal minimum wage stuck at $7.25 per hour for over a decade, many states have enacted their own legislation to raise wage floors. These efforts include: State-level minimum wage increases Automatic adjustments tied to inflation Municipalities setting wages above state levels This decentralized approach has led to a patchwork of wage standards across the country, with significant variation depending on location. Widespread Increases Since 2014 The movement to raise minimum wages has gained substantial traction: 28 states and the District of Columbia have increased their minimum wage since 2014 30 states and the District of Columbia now have minimum wages above the federal rate 63 municipalities or counties have set minimum wages higher than their respective state minimums Wage rates exceeding $15.00 per hour are increasingly common These changes reflect a broader recognition of the need for wages that better support working individuals and families. Leading the Nation: Highest Minimum Wage Rates As of mid-2025, several states and cities stand out for their high minimum wage rates: District of Columbia: $18.00/hour (effective July 1, 2025) California: $16.50 Connecticut: $16.35 New Jersey: $15.49 New York (NYC, Long Island, Westchester): $16.50 Washington: $16.66 Municipalities in Washington State boast the highest local rates: Burien, WA: $21.10 Tukwila, WA: $21.10 (for large employers) Seattle, WA: $20.76 These figures highlight the growing trend of local governments stepping in to ensure livable wages. Who Still Earns the Federal Minimum? Despite the federal rate remaining at $7.25, only a small fraction of workers earn this amount: Less than 2% of American workers are paid the federal minimum wage The Bureau of Labor Statistics projects wage growth of 3% to 5% across most states in 2025 By October 2025, over half of all states will have minimum wages above $14.00/hour This data suggests that market forces and state legislation are driving wage increases independently of federal action. Federal Legislation on the Horizon? The Raise the Wage Act of 2025, introduced in both chambers of Congress on April 8, 2025, proposes sweeping changes: Gradual increase of the federal minimum wage to $17.00/hour by 2030 Elimination of the subminimum wage for tipped workers and workers with disabilities Tipped employee minimum wage to rise to $15.00/hour by 2030 Strong backing: 175 Congressional sponsors and support from 85 labor organizations If passed, this legislation would mark a significant shift in federal wage policy and could set a new national standard.
November 19, 2025
Labor and Employment
The Hidden Cost of Remote Work: Who Pays for the Home Office?
Remote work is now a customary feature of many workplaces. Until recently, employer policies (if any) governed payment of the job-related expenses incurred by remote workers. However, a number of states have now enacted express mandates for payment of remote employment expenses. California, Illinois, Iowa, Massachusetts, Minnesota, Montana, New Hampshire, New York, North Dakota, Pennsylvania, South Dakota, and the District of Columbia have statutes that require employers to reimburse employees for certain remote work expenses. The city of Seattle also requires payment of “remote work expenses” under its wage payment statute. There are three different types of expense reimbursement laws: Required Reimbursement Most of these states require reimbursement of “necessary” expenses that relate to the performance of the employee’s duties. Those states are California, Illinois, Massachusetts, Montana, North Dakota, South Dakota and the District of Columbia. Conditional Reimbursement Two states make reimbursement conditional on the employer’s policy. Iowa requires reimbursement of expenses “authorized by the employer;” and New York only requires payment for expenses that are “promised” to the employee. Equipment/Tools Reimbursement Two states do not have the “necessary” condition for reimbursement but require payment for equipment or tools based on their use in connection with employment. Minnesota requires reimbursement of expenses for “equipment used” in for work, except “tools of the trade.” New Hampshire similarly requires payment for any expenses “incurred at the request of the employer” except for “expenses normally borne by the employee.” All of these state laws commonly require more extensive reimbursement for work expenses compared with the narrower typical expense reimbursement practices historically used by employers. However, detailed guidance on the scope and nature of required reimbursements is not yet provided in these state laws. State laws that require employers to reimburse the expenses of remote workers typically define the costs covered in terms of whether they are “necessary” for discharge of the employee’s duties and directly related to the kind of work performed. Although not expressly stated in these laws, the underlying premise is that the expenses would not have been incurred unless the employee was performing remote work for the employer. Clearly, the definition of reimbursable expenses is very broad, since any equipment, software, connectivity, or furniture that is actually and routinely used to perform work can be seen as “necessary.” Typical examples of reimbursable expenses would include computer equipment, printers, cellphones, internet connections, software licenses, and cameras/microphones for video conferencing. However, the definition of expenses that are required to be reimbursed is broader than the typical scope of equipment that is reimbursed or furnished to the employee. For example, if a desk or an ergonomic chair is necessary for performance of the employee’s duties, then it may well fit the definition of a reimbursable expense under state law. As a general rule, any expenses that would be incurred by the employee if the employee were not working for the employer are not covered by the state reimbursement laws. Certainly, any normal living expenses (such as food, furniture, electric power, etc.) are not reimbursable under these laws. Also, any personal luxury items that are not necessary for the work (such as decorations for a home office) are not covered. The state statutes do not distinguish between temporary and more long-term remote work for purposes of reimbursement. None of the state laws address how the allocation of expenses that are used both for work and personal activities should be handled. Under the laws of the seven states that use the “necessary expense” test, it would probably violate the law to require pro rata apportionment, since the expenses are fully reimbursable if “necessary” for work. In the two states where the test is whether the equipment or tools are “used” in connection with employment, a similar analysis could apply. In the two states where the employer reimburses pursuant to its authorization or promises, the employer may allow for partial reimbursement as part of its policy. However, establishing and enforcing the separation of employment-related costs and personal costs would be very difficult. The state of Illinois is an exception to the lack of guidance on reimbursable expenses under state laws. The Illinois law supplies a five-part test for determining what expenses are covered: Whether the employee has any expectation of reimbursement Whether the expense is required or necessary to perform the employee’s job duties Whether the employer is receiving a value that it would otherwise need to pay for How long does the employer receive the benefit Whether the expense is required for the job In more than 75% of the states, reimbursement of remote work expenses is neither required by law nor regulated. As a best practice, however, employers should establish clear, detailed policies that describe what remote work expenses are considered to be necessary and directly related to employee duties, as well as policies for documentation and reimbursement of expenses. These policies may need to vary depending upon the job description, work performed, or disability accommodation.
October 20, 2025
