Ted Parker is a student at Harvard Law School and a member of the Labor and Employment Lab.
In today’s news and commentary, the comment period for the Trump administration’s new Schedule F rule draws to a close; Gwynne Wilcox’s reinstatement case works its way through the D.C. Circuit; plaintiffs seeking a declaratory judgment on the NLRB’s removal protections run into a jurisdictional problem; and New Jersey locomotive engineers return to work after a successful strike.
The comment period for the Trump administration’s revived Schedule F rule ends this Friday at midnight. As Henry wrote in January, Schedule F (now called “Schedule Policy/Career”) would allow the administration to fire career employees “at will.” The proposed rule (“Improving Performance, Accountability and Responsiveness in the Civil Service”) invokes the specter of civil servants “intentionally subverting Presidential directives” to remove their for-cause protections. Unions like the National Treasury Employees Union say Schedule F is about “administering political loyalty tests” to employees in non-political positions. Advocates are encouraging the public to submit comments to the rule with a step-by-step guide. These comments are not likely to block the rule but could create a record making it easier to overturn.
Speaking of for-cause protections, a D.C. Circuit panel heard oral arguments on Friday in Gwynne Wilcox’s reinstatement case. How the case’s current procedural posture fits into the back-and-forth John laid out last month is complex. First, a D.C. District Court ordered Wilcox’s reinstatement. Then, a D.C. Circuit panel stayed that order, pending its consideration of the case on the merits. Then, the full D.C. Circuit reversed the panel’s stay, giving the order effect again. Finally, the Supreme Court stayed the order again, which simultaneously returned the case to the D.C. Circuit panel (for consideration on the merits) and retained it at the Supreme Court (where the administration’s request for consideration on the merits is still pending). As a result, the case is now playing out on two levels. The oral arguments last Friday took place on the lower of these two levels, as the case winds its way through D.C. Circuit back up to the Supreme Court. Meanwhile, the Supreme Court could intervene at any time by granting administration’s request to hear the case before the D.C. Circuit has ruled on the merits. One way or the other, then, the oral arguments on Friday are likely only a prelude to the case’s final resolution at the Supreme Court.
According to reporting in Bloomberg, Wilcox’s case was also the talk of a different D.C. Circuit panel the day before. At oral arguments, the National Right to Work Legal Defense Foundation, representing two Starbucks workers, asked for a declaratory judgment that the removal protections for Board members are unconstitutional “as a shield against [Wilcox’s] return.” Judge Garcia appeared to question whether it would be “appropriate” to “interrupt ongoing litigation over Wilcox’s reinstatement.” But even more important was a larger jurisdictional problem. Because Trump’s NLRB agrees with Right to Work that the protections are unconstitutional, the “controversy” required for federal jurisdiction seems to be lacking. For Garcia, this “sets off every alarm bell I have for what it means to only resolve controversies with adverse parties.” If the Court declared the protections unconstitutional now, a future litigant willing to actually make the case for the protections’ constitutionality might be bound by a decision made without the benefit of this advocacy.
Finally, New Jersey locomotive engineers returned to work today after a historic three-day strike (previously covered by Ajayan, Justin, and Liana). Details are still sketchy, but the workers seem to have won the raise they were striking for. NJ Transit service is expected to resume Tuesday.
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February 26
Workplace AI regulations proposed in Michigan; en banc D.C. Circuit hears oral argument in CFPB case; white police officers sue Philadelphia over DEI policy.
February 25
OSHA workplace inspections significantly drop in 2025; the Court denies a petition for certiorari to review a Minnesota law banning mandatory anti-union meetings at work; and the Court declines two petitions to determine whether Air Force service members should receive backpay as a result of religious challenges to the now-revoked COVID-19 vaccine mandate.
February 24
In today’s news and commentary, the NLRB uses the Obama-era Browning-Ferris standard, a fired National Park ranger sues the Department of Interior and the National Park Service, the NLRB closes out Amazon’s labor dispute on Staten Island, and OIRA signals changes to the Biden-era independent contractor rule. The NLRB ruled that Browning-Ferris Industries jointly employed […]
February 23
In today’s news and commentary, the Trump administration proposes a rule limiting employment authorization for asylum seekers and Matt Bruenig introduces a new LLM tool analyzing employer rules under Stericycle. Law360 reports that the Trump administration proposed a rule on Friday that would change the employment authorization process for asylum seekers. Under the proposed rule, […]
February 22
A petition for certiorari in Bivens v. Zep, New York nurses end their historic six-week-strike, and Professor Block argues for just cause protections in New York City.
February 20
An analysis of the Board's decisions since regaining a quorum; 5th Circuit dissent criticizes Wright Line, Thryv.