FP Workplace Law Forecast 2025

LABOR RELATIONS

LOOKING AHEAD TO 2025

MORE OF 2024 IN REVIEW

2024 PREDICTIONS RECAP

The Agency’s Outsized Power Persisted in Many Ways

The new union representation process installed by the Board last year unsurprisingly led to an astronomical increase in election petitions filed in the first half of FY 2024. The Board’s General Counsel continued to push an ambitious policy agenda, including by issuing new guidance banning most non-compete agreements, cracking down on “stay-or-pay” provisions, and imposing heavy burdens on employers responding to union recognition demands. And the NLRB issued a final rule that makes it harder for workers to undo union representation, as well as a groundbreaking decision restricting employer communications about unionization. SCOTUS Ruled Against the NLRB The Supreme Court sided with Starbucks in June by holding that a lower court should have applied a more stringent standard when evaluating the Board’s request for temporarily reinstating workers – who were fired for hosting media interviews after-hours in a closed store in violation of company policy – while an unfair labor practice claim played out in court. More States Banned Captive Audience Meetings Captive audience bans continued trending at the state level, as California, Hawaii, Illinois, Vermont, and Washington enacted captive audience bans (and Alaska voters approved a ballot measure to adopt one). But legal challenges to these bans are popping up across the country. HOW’D WE DO ON OUR PREDICTIONS?

The Labor Relations Arena Will Return to a Level Playing Field Between the end of Chevron and the incoming Trump administration, we will see balance restored when it comes to federal labor law policy. Employers will have not only a new powerful tool to fight back against regulatory overreach under Loper Bright (perhaps paving the way for a lower threshold to challenge the Board’s ever-expanding interpretation of “protected concerted activity,” as well as decisions impacting both unionized and non-unionized employers) but also more leeway over the next four years under the Trump administration. A New NLRB General Counsel Will Undo Much of the Current GC’s Efforts We expect Donald Trump to jettison Jennifer Abruzzo as one of his first acts as President and appoint a new NLRB General Counsel who may work to undo much of the policy that GC Abruzzo pushed this year and in past years (such as directing agency investigators to target workplace surveillance and other electronic monitoring). Over Time, New Board Leaders Will Chip Away at the Biden Board’s Gains Once Republicans take control of the Board, we will see decisions such as Cemex , McLaren , Stericycle , and Thryv overturned. We’ll also see a recission of the “quickie” election rule and a return to more equitable decertification procedures.

SCOTUS Ended So-Called “ Chevron Deference”

The Supreme Court stripped power from federal agencies – including the National Labor Relations Board – by overturning the decades-old Chevron doctrine in June, just as we predicted. The landmark Loper Bright ruling replaces deference to an agency’s “reasonable” interpretation of ambiguous regulatory provisions with the court’s independent judgment. The Joint Employer Rule Died Again … As we predicted, employer advocacy organizations continued efforts to block the NLRB’s controversial joint employer rule, which would have resulted in increased union organizing efforts with related companies. Thanks to those efforts, a federal court struck down the rule in March just days before it was set to take effect. The Labor Board appealed the decision but dropped that fight soon after SCOTUS issued Loper Bright . Keep in mind that the Board’s definition of “joint employment” has flip-flopped several times throughout the past decade, and that the agency could soon try to shift the landscape through agency decisions. Ex-Cell-O-Corp. Remained Intact – But Captive Audience Meetings Did Not In a welcome surprise, labor officials did not expand remedies for unfair labor practices concerning failure to bargain, despite years of pushing for the reversal of the NLRB’s Ex-Cell-O Corp. decision. Even better? The Supreme Court issued a decision in June that undermines the Board’s ability to impose financial penalties on employers. However, the Board did endorse its General Counsel’s position on mandatory meetings discussing union matters and in November banned these “captive audience” meetings as unlawful interference with employees’ right to organize.

Steven M. Bernstein

Todd A. Lyon Portland/Los Angeles/San Francisco/Seattle Partner and Labor Relations Group Co-Chair tlyon@fisherphillips.com

We got the predictions MOSTLY RIGHT

Tampa Regional Managing Partner and Labor Relations Group Co-Chair sbernstein@fisherphillips.com

Joshua D. Nadreau

Boston Regional Managing Partner and Vice Chair, Labor Relations Group jnadreau@fisherphillips.com

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