
Sunah Chang is a student at Harvard Law School.
In today’s news and commentary: the NLRB drops its appeal of a district court case striking down its joint employer rule, red states reassert challenge to EEOC’s pregnancy rule, and the W.N.B.A. players’ union taps advisors.
Last Friday, the NLRB dropped its appeal of a district court’s decision striking down its 2023 joint employer rule, which would have classified many companies as employers of contract or franchise workers, requiring them to bargain with these workers pursuant to the NLRA. More specifically, the 2023 rule sought to treat companies as “joint employers” of franchise or contract workers so long as they have direct or indirect control over the essential terms and conditions of employment. In its motion to the Fifth Circuit for voluntary dismissal, the NLRB noted that it “remains of the opinion that its 2023 Rule meets the procedural and substantive requirements of the Administrative Procedure Act and the National Labor Relations Act.” It remains unclear whether and how this Fifth Circuit dismissal will impact other pending cases concerning the joint employer rule in the D.C. Circuit.
Riding the wave of the recent Supreme Court decision narrowing the power of executive agencies, 17 Republican attorneys general have filed an appeal to the Eighth Circuit challenging the EEOC’s 2024 rule expanding workplace accommodations for abortions. The states seek to reverse a ruling by the Eastern District of Arkansas from earlier this summer, which upheld the EEOC’s interpretation of the Pregnancy Workers Fairness Act under the Chevron doctrine. Citing the Supreme Court’s recent overturning of Chevron in the Loper Bright case, the attorneys general have requested that the Eighth Circuit review the district court decision. Furthermore, while the Eastern District of Arkansas dismissed the original challenge for lack of standing, the attorneys general have argued that the district court’s standing analysis erroneously ignored that the EEOC’s rule “inflicts distinct injuries” to the states by overriding their “sovereign interest in protecting fetal life through constitutional, statutory, and workplace policies.”
Lastly, the union representing W.N.B.A. players has summoned a five-person advisory board to assist the union on its collective bargaining strategy. The union and the W.N.B.A. league are currently locked into a C.B.A. that is set to expire in 2027 unless either the league or the players decide to opt out. If either party opts out by November 1, 2024, the parties will have about a year to negotiate a new agreement until the current C.B.A. expires on October 31, 2025. In order to evaluate the choice to opt out, the union has retained five experts—Claudia Goldin, W. Charles Bennett, Deborah Willig, Tag Garson, and David Cooper—to advise on the decision. Salient issues on top of the union’s priorities include improving travel arrangements, salaries, revenue sharing, and parental and fertility benefits.
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October 8
In today’s news and commentary, the Trump administration threatens no back pay for furloughed federal workers; the Second Circuit denies a request from the NFL for an en banc review in the Brian Flores case; and Governor Gavin Newsom signs an agreement to create a pathway for unionization for Uber and Lyft drivers.
October 7
The Supreme Court kicks off its latest term, granting and declining certiorari in several labor-related cases.
October 6
EEOC regains quorum; Second Circuit issues opinion on DEI causing hostile work environment.
October 5
In today’s news and commentary, HELP committee schedules a vote on Trump’s NLRB nominees, the 5th Circuit rejects Amazon’s request for en banc review, and TV production workers win their first union contract. After a nomination hearing on Wednesday, the Health, Education, Labor and Pensions Committee scheduled a committee vote on President Trump’s NLRB nominees […]
October 3
California legislation empowers state labor board; ChatGPT used in hostile workplace case; more lawsuits challenge ICE arrests
October 2
AFGE and AFSCME sue in response to the threat of mass firings; another preliminary injunction preventing Trump from stripping some federal workers of collective bargaining rights; and challenges to state laws banning captive audience meetings.