Labor

Expert Analysis

• 2nd Circ. Eases Employer Defense Of Dress Code Rules

  

  The Second Circuit recently sided with Starbucks in a ruling that makes it easier for companies to defend dress code policies against unfair labor practice challenges, but employers shouldn't read it as a license to ban union insignia, say attorneys at Shipman & Goodwin.

• NY Severance Rules Persist Despite McLaren Macomb Threat

  

  Despite recent calls to overturn the National Labor Relations Board's decision in McLaren Macomb, New York's robust regulation will remain intact, limiting practitioners' ability to offer nonsupervisory employees severance agreements with confidentiality and nondisclosure provisions, says Matthew Berman at Valli Kane.

• Data Sale In Spirit Bankruptcy Raises Novel Privacy Risks

  

  Spirit Airlines' planned sale of deidentified business data to Google for artificial intelligence training exposes gaps in the Bankruptcy Code's privacy guardrails, particularly for employee information, say attorneys at Patterson Belknap.

• NLRB Memo Signals Narrower View Of Protected Activism

  

  A recent National Labor Relations Board memo concluding that Microsoft lawfully discharged two employees who conducted a pro-Palestinian protest on company property indicates that the current NLRB general counsel may take a more restrictive view of when political or social advocacy qualifies as protected activity, say attorneys at Franczek.

• Visa Ruling Exposes APA Risks For DHS Grace Period Repeal

  

  Four defects described in a September district court decision halting the U.S. Department of Homeland Security's new restrictions on student visas as arbitrary and capricious under the Administrative Procedure Act can also be seen in the agency's recent proposal to eliminate a long-standing grace period for laid-off skilled foreign workers, says Jun Li at Reid & Wise.

• How Employers Can Navigate NLRB Rulings Ripe For Reversal

  

  Given a recent National Labor Relations Board memo seeking to reverse several precedents — including on severance agreements and workplace policies — employers should prepare now to restore broader protections when the board acts, while following the law as it exists today, says Howard Lavin at Thompson Coburn.

• Tips From Apex Ruling On Handling Workers' Public Criticism

  

  A National Labor Relations Board judge’s recent finding that Apex Fintech Services illegally reined in an employee’s public criticism on LinkedIn should caution employers that overbroad policies and reflexive responses may not only fail to defend the company’s reputation, but compound risks of federal labor charges, say attorneys at Krevolin Horst.

• 9th Circ. Ruling Marks New Chapter In Risk Factor Tug-Of-War

  

  The Ninth Circuit's recent dismissal of a securities fraud class action against SunPower is the latest in a growing line of cases addressing whether, if ever, a company's risk factor disclosures can give rise to potential liability, an area where the law remains unsettled, say attorneys at Alston & Bird.

• Attorneys Using AI May Have Ethical Duty To Redact Docs

  

  The trajectory of legal ethics guidance in recent years strongly suggests that as redaction technology becomes more accessible, the failure to use it when uploading highly confidential materials into artificial intelligence tools will become increasingly difficult to defend as reasonable, say attorneys at Lewis Brisbois.

• The Future Of DOL Judge Removal Challenges After Slaughter

  

  The U.S. Supreme Court's recent ruling in Trump v. Slaughter calls into question whether U.S. Department of Labor administrative law judges exercising significant governmental authority remain insulated from presidential removal, but the answer depends on the governing statute, its severability provisions and other factors, says Mark Ishu at Conn Maciel.

• Rejection Of NLRB Successor Bar Renews An Employer Tool

  

  Although the D.C. Circuit's recent ruling in Hospital Menonita v. National Labor Relations Board does not allow purchasers to disregard incumbent unions, employers acquiring a unionized business have regained a tool to challenge a union's majority support, say attorneys at Bass Berry.

• Flashpoints In Focus: Minimizing Midterm Politics At Work

  

  With the upcoming midterm elections producing a steady stream of controversy, employers would benefit from planning in advance and developing guardrails to ensure that election-related rifts do not jeopardize the company's culture or results, say attorneys at Seyfarth.

• NLRB Ruling Highlights Risk From Employee Handbook Test

  

  A National Labor Relations Board judge's recent decision to strike down a workplace rule that only theoretically inhibited protected employee activity highlights the great risks employers face under the board's 2023 ruling in Stericycle and explains why this strict standard may be rolled back under the newly Republican-majority board, says Daniel Johns at Cozen O'Connor.