June 5, 2025
Today, in a 9-0 opinion, the Court abandoned the Sixth Circuit’s “background-circumstances” rule, which had forced majority-group plaintiffs to clear a higher evidentiary bar at step one of the McDonnell Douglas framework. in Ames v. Ohio Dept of Youth Services decided today. Going forward, straight, white, male—or any “majority”—employees face the same prima-facie burden as everyone else under…
December 10, 2024
On Tuesday, December 10, 2024, a federal judge agreed with a Massachusetts hospital that challenged National Labor Board Administrative Law Judges’ job protections, holding that the “tenure protections” are unconstitutional. The hospital argued that the ALJs enjoyed “multiple levels of protection from presidential removal,” an argument that clearly persuaded the court. The court wrote that “this…
August 21, 2024
On August 20, 2024, a federal judge set aside the Federal Trade Commission’s (“FTC”) ban on noncompete agreements (the “Rule”), which was to take effect in September of this year. The Rule had sought to characterize noncompete agreements in employment contracts as an unfair method of competition and effectively ban the use of such agreements nationwide. Earlier this spring, the Jackson Kelly…
June 28, 2024
On June 28, 2024, the Supreme Court issued a highly-anticipated decision in the twin cases of Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dep’t of Commerce, which will now make it more difficult for federal agencies to issue rules and regulations that aim to carry out statutory mandates of Congress. The 6-3 decision overrules the 1984 decision Chevron v. Natural Resources Defense…
June 13, 2024
Earlier today, the Supreme Court of the United States issued an 8-1 decision in Starbucks Corp. v. McKinney, 602 U.S. __ (2024), making it more difficult for the National Labor Relations Board (“NLRB” or the “Board”) to win injunctions against employers by directing district courts to apply the traditional four-factor test when the Board sues to stop alleged unfair labor practices (“ULP”) while…
April 24, 2024
On April 23, 2024, the Federal Trade Commission (“FTC”) approved a proposed final rule that would effectively ban noncompete clauses in employment contracts. In issuing the final rule, the FTC stated that noncompete agreements are an “unfair method of competition” that constitute a violation of Section 5 of the Federal Trade Commission Act. The Rule is set to take effect 120 days from its entry…
April 24, 2024
On April 23, 2024, the Department of Labor issued a final rule, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees.” The rule significantly raises the minimum salary thresholds to qualify for certain exemptions from overtime pay under the Fair Labor Standards Act (FLSA). Specifically, the rule will raise the minimum weekly…
April 17, 2024
For years, federal courts have followed two mantras: (1) employment statutes should not function as “general civility” codes in the American workplace; and (2) Title VII is not a vehicle for a court to serve as a super-personnel department weighing the prudence of employments decisions. See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Morgan v. Mylan Pharms. Inc., No.…
February 20, 2024
The list of employers challenging the National Labor Relations Board (“NLRB”) grew again last week, as Amazon joined the likes of SpaceX, Starbucks, and Trader Joe’s in arguing that the NLRB is unconstitutional.
In an answer to a Board charge, Amazon asserted that the structure of the NLRB is unconstitutional because it violates the separation of powers because the president cannot remove NLRB…
February 6, 2024
On February 5, 2024, a regional director for the National Labor Relations Board (NLRB) concluded that Dartmouth College’s men’s basketball players are “employees,” and that, as employees, they are eligible to unionize. The decision has seismic implications and further clouds the future of the NCAA’s “amateur” status.
In her decision, Regional Director Laura Sacks stated: “Because Dartmouth has the…
October 26, 2023
On October 26, 2023, the National Labor Relations Board (“NLRB”) issued a widely anticipated rule which broadens the joint-employer test, thereby making it easier for employees of franchisees and staffing agencies to show that the franchisor or agency is their joint employer and bring them to the bargaining table. The NLRB’s press release may be found here, and the final rule may be accessed here…
October 20, 2023
In Noonan v. Consolidated Shoe Company, No. 21-2328 (4th Cir. Oct. 19, 2023), the United States Court of Appeals for the Fourth Circuit stressed the need for proper comparators in wage discrimination cases. The Court also emphasized the employee’s burden to prove a causal link between alleged gender-based discrimination and adverse employment actions.
The Fourth Circuit affirmed the district…
June 5, 2025
Today, in a 9-0 opinion, the Court abandoned the Sixth Circuit’s “background-circumstances” rule, which had forced majority-group plaintiffs to clear a higher evidentiary bar at step one of the McDonnell Douglas framework. in Ames v. Ohio Dept of Youth Services decided today. Going forward, straight, white, male—or any “majority”—employees face the same prima-facie burden as everyone else under…
December 10, 2024
On Tuesday, December 10, 2024, a federal judge agreed with a Massachusetts hospital that challenged National Labor Board Administrative Law Judges’ job protections, holding that the “tenure protections” are unconstitutional. The hospital argued that the ALJs enjoyed “multiple levels of protection from presidential removal,” an argument that clearly persuaded the court. The court wrote that “this…
August 21, 2024
On August 20, 2024, a federal judge set aside the Federal Trade Commission’s (“FTC”) ban on noncompete agreements (the “Rule”), which was to take effect in September of this year. The Rule had sought to characterize noncompete agreements in employment contracts as an unfair method of competition and effectively ban the use of such agreements nationwide. Earlier this spring, the Jackson Kelly…
June 28, 2024
On June 28, 2024, the Supreme Court issued a highly-anticipated decision in the twin cases of Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dep’t of Commerce, which will now make it more difficult for federal agencies to issue rules and regulations that aim to carry out statutory mandates of Congress. The 6-3 decision overrules the 1984 decision Chevron v. Natural Resources Defense…
June 13, 2024
Earlier today, the Supreme Court of the United States issued an 8-1 decision in Starbucks Corp. v. McKinney, 602 U.S. __ (2024), making it more difficult for the National Labor Relations Board (“NLRB” or the “Board”) to win injunctions against employers by directing district courts to apply the traditional four-factor test when the Board sues to stop alleged unfair labor practices (“ULP”) while…
April 24, 2024
On April 23, 2024, the Federal Trade Commission (“FTC”) approved a proposed final rule that would effectively ban noncompete clauses in employment contracts. In issuing the final rule, the FTC stated that noncompete agreements are an “unfair method of competition” that constitute a violation of Section 5 of the Federal Trade Commission Act. The Rule is set to take effect 120 days from its entry…
April 24, 2024
On April 23, 2024, the Department of Labor issued a final rule, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees.” The rule significantly raises the minimum salary thresholds to qualify for certain exemptions from overtime pay under the Fair Labor Standards Act (FLSA). Specifically, the rule will raise the minimum weekly…
April 17, 2024
For years, federal courts have followed two mantras: (1) employment statutes should not function as “general civility” codes in the American workplace; and (2) Title VII is not a vehicle for a court to serve as a super-personnel department weighing the prudence of employments decisions. See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Morgan v. Mylan Pharms. Inc., No.…
February 20, 2024
The list of employers challenging the National Labor Relations Board (“NLRB”) grew again last week, as Amazon joined the likes of SpaceX, Starbucks, and Trader Joe’s in arguing that the NLRB is unconstitutional.
In an answer to a Board charge, Amazon asserted that the structure of the NLRB is unconstitutional because it violates the separation of powers because the president cannot remove NLRB…
February 6, 2024
On February 5, 2024, a regional director for the National Labor Relations Board (NLRB) concluded that Dartmouth College’s men’s basketball players are “employees,” and that, as employees, they are eligible to unionize. The decision has seismic implications and further clouds the future of the NCAA’s “amateur” status.
In her decision, Regional Director Laura Sacks stated: “Because Dartmouth has the…
October 26, 2023
On October 26, 2023, the National Labor Relations Board (“NLRB”) issued a widely anticipated rule which broadens the joint-employer test, thereby making it easier for employees of franchisees and staffing agencies to show that the franchisor or agency is their joint employer and bring them to the bargaining table. The NLRB’s press release may be found here, and the final rule may be accessed here…
October 20, 2023
In Noonan v. Consolidated Shoe Company, No. 21-2328 (4th Cir. Oct. 19, 2023), the United States Court of Appeals for the Fourth Circuit stressed the need for proper comparators in wage discrimination cases. The Court also emphasized the employee’s burden to prove a causal link between alleged gender-based discrimination and adverse employment actions.
The Fourth Circuit affirmed the district…
