In today’s news and commentary, the DC Circuit is poised to rule on the deference it owes to the NLRB, more cases on religious vaccine exemptions, and the Senate considers a ban on forced arbitration in age discrimination claims.

The DC Circuit is poised to issue its first opinion on what deference is owed to NLRB interpretations of the NLRA since Loper-Bright Enterprises v. Raimondo was decided. A DC Circuit panel heard oral arguments last week in Hospital Menonita de Guayama v. NLRB, which turns on the NLRB’s power to interpret the NLRA as authorizing a “successor bar” (i.e., a requirement that the new owners of a company recognize a pre-existing union). In theory, the court could still defer to the agency, since deference to the NLRB precedes the Chevron doctrine and rests on different bases. In any case, the panel’s eventual decision will likely be significant to the extent that it would set circuit precedent in the NLRB’s most frequent venue.

Last week, Henry reported on the Ninth Circuit’s ruling against a group of firefighters claiming a religious exemption to a COVID-19 vaccination mandate. This ruling adds to a flurry of activity around similar cases. Recently, an Illinois jury found for a Chicago Transit Authority employee in essentially the same position, awarding him $450,000 in damages. On the other hand, a Pennsylvania federal district court dismissed a similar claim by an employee terminated by 3M for refusing the vaccine. There, the court was skeptical of the employee’s “flexible” religious beliefs but ultimately rested its decision on the hardship her refusal would have caused the company. Finally, a Fifth Circuit panel heard oral arguments last week in Kincannon v. United Airlines Inc., a class action case against United for its policy of putting employees who refused the vaccine on unpaid leave. While the district court certified this class of employees, the panel struggled with how a class based on religious sincerity (which would seem to demand individualized determinations) could be certified.

Finally, Bloomberg reports on a hearing held by the Senate Special Committee on Aging to consider arguments for the Protecting Older Americans Act (POAA). The POAA would allow employees suing their employers for age discrimination to have their day in court rather than be forced into private arbitration, where the deck is stacked against them. Notably, advocates for the bill used the Ending Forced Arbitration of Sexual Harassment and Sexual Assault Act (EFAA) as proof of concept for the POAA. The EFAA, which was passed in 2022 with bipartisan support, has shown this type of legislation does not lead to “a deluge of lawsuits, and certainly not of frivolous lawsuits.” If the POAA passes, it could form a link in the chain starting with the EFAA and ending, advocates hope, in a ban on all forced arbitration of workplace disputes.