
Henry Green is a student at Harvard Law School.
In today’s news and commentary, the 5th Circuit upholds injunctions that paused Board proceedings against three Texas employers, holding that the employers are likely to succeed in their arguments that the NLRB’s structure is unconstitutional; and Illinois lawmakers direct the state’s department of labor to counteract federal changes to health and safety and wage and hour laws.
In an opinion published yesterday, the 5th Circuit upheld three preliminary injunctions issued by Texas district courts based on employer arguments that the NLRB’s structure is unconstitutional. The opinion appears to say that removal protections for NLRB administrative law judges (ALJ’s) are unconstitutional, that removal protections for Board Members are “likely” unconstitutional, and that ULP proceedings can be enjoined by federal courts where there is a constitutional challenge to the NLRB’s structure.
In the district court cases, which the 5th Circuit consolidated for review, three employer-plaintiffs — SpaceX, an energy company, and a social services website — argued the NLRB’s structure is unconstitutional because ALJ’s and Board Members are insulated from presidential removal. In all three cases, courts issued injunctions that paused Board proceedings against the employers. The NLRB appealed those injunctions to the 5th Circuit, arguing the courts did not have jurisdiction to issue the injunctions, and that the injunctions were improperly issued because the employers were unlikely to succeed on the merits and had not shown irreparable harm.
In their ruling, the 5th Circuit rejected all of those arguments. On jurisdiction, the Board argued that federal courts cannot enjoin ULP proceedings because the Norris-LaGuardia Act divests them of the ability to enjoin “labor disputes.” However, the 5th Circuit rejected this argument, saying in part that these cases fall outside the Norris-LaGuardia bar because they concern constitutional challenges to the NLRA, not labor disputes. On the merits, the Court also sided with the employers. The Court said removal protections for ALJ’s are unconstitutional, citing Jarkesy. And the Court said plaintiffs were “likely” to succeed in arguing that Board Member removal protections are unconstitutional, citing the Supreme Court’s recent Wilcox case and arguing Humphrey’s Executor does not apply to the NLRB because its structure does not mirror the 1935 FTC’s closely enough. Finally, the Court said the cases showed sufficient irreparable harm to warrant the injunctions, because employers suffered the irreparable harm of “being subjected to unconstitutional agency authority.”
In Illinois, Governor Pritzker signed a bill that directs the State’s Department of Labor to replace federal wage and hour and health and safety laws that are repealed or otherwise changed. SB 1976 directs the state DOL to adopt rules “at least as stringent” as any federal wage and hour or coal mine safety regulation that is changed after April 28, 2025. The bill appears to focus on employment law protections, perhaps in an effort to avoid Garmon preemption. Bloomberg reports on something of an opposite effort in Kentucky, where lawmakers recently barred the state’s Occupational Safety and Health Standards Board from enforcing safety regulations not enacted at the federal level.
Daily News & Commentary
Start your day with our roundup of the latest labor developments. See all
September 30
the NTEU petitions for reconsideration for the CFPB layoff scheme, an insurance company defeats a FLSA claim, and a construction company violated the NLRA by surveilling its unionized workers.
September 29
Starbucks announces layoffs and branch closures; the EEOC sues Walmart.
September 28
Canadian postal workers go on strike, and the Federal Bureau of Prisons cancels a collective bargaining agreement covering over 30,000 workers.
September 26
Trump’s DOL seeks to roll back a rule granting FLSA protections to domestic care workers; the Second Circuit allows a claim of hostile work environment created by DEI trainings to proceed; and a GAO report finds alarming levels of sexual abuse in high school Junior Reserve Officers’ Training Corps programs.
September 25
Fenway workers allege retaliation; fired Washington Post columnist files grievance; Trump administration previews mass firings from government shutdown.
September 24
The Trump administration proposes an overhaul to the H-1B process conditioning entry to the United States on a $100,000 fee; Amazon sues the New York State Public Employment Relations Board over a state law that claims authority over private-sector labor disputes; and Mayor Karen Bass signs an agreement with labor unions that protects Los Angeles city workers from layoffs.