04.11.2025Trump Executive Order Targets Federal Unions and Sparks Legal Battle over Bargaining at 18 AgenciesBy Executive Order dated March 27, 2025, entitled, “Exclusions from Federal Labor-Management Relations Programs,” President Trump moved to end collective bargaining with unions at 18 federal agencies and urged them to void their current labor agreements. The agencies affected include the Departments of State, Defense, Treasury, Interior, and Homeland Security. The same day, these agencies, led by the Department of Defense, took up the mantle of the Executive Order and sued in U.S. District Court in Texas to cancel their labor agreements.
04.07.2025DC Circuit Reverses Reinstatement Of Agency Board MembersIn a split decision, the D.C. Circuit Court of Appeals reversed the District Court and ruled that President Trump is not obligated for now to reinstate fired National Labor Relations Board and Merit Systems Protection Board members, undoing the District Court’s injunction. The District Court ordered Trump to reinstate the agency board members – Gwynne Wilcox of the NLRB and Cathy Harris of the MSPB – reasoning that his right to fire them was restricted by Congress and a 1935 Supreme Court decision in Humphrey's Executor v. U.S. On March 28, the Appeals Court explained that the law since 1935 has trended towards more presidential sway over independent agency officials, and therefore, President Trump is likely to succeed on the merits of the case.
03.11.2025National Labor Relations Board Back to Quorum Strength as Member Wilcox Is ReinstatedIn an emphatic decision, Federal Court Judge Beryl Howell of the District of Columbia District ordered President Trump to reinstate NLRB Member Gwynne A. Wilcox to her Board seat. The President fired Wilcox, asserting unitary power over employees in the executive branch. Rejecting this broad construction of executive authority, Judge Howell concluded that Congress meant for some federal employees to be beyond the President’s reach except in limited circumstances.
02.21.2025Acting NLRB General Counsel Scraps Predecessor's Memos, Signals a New DirectionOn Valentine’s Day, the Acting NLRB General Counsel, William B. Cowen, delivered a greeting card of sorts to his staff and the public signaling a new direction for the agency. Commenting that “the backlog of cases at the agency is no longer sustainable,” Cowen rescinded 31 memos by his predecessor Jennifer Abruzzo, some totally and others pending further guidance. Implicitly criticizing Abruzzo’s expansive view of federal labor Law, Cowen stated, “[I]f we attempt to accomplish everything, we risk accomplishing nothing.”
01.27.2025Federal Contractors Get Relief from PLA and DEI Requirements This past week, employers received two reprieves from mandatory conditions before winning federal contracts. On January 21, 2025, Federal Claims Court Judge Ryan T. Holte ruled that President Biden’s 2022 Executive Order that federal agencies choose only bidders that agree to enter into project labor agreements (PLAs) with unions for any federal construction contract over $35 million is unlawful. Judge Holt sided with the plaintiff Contractors in ruling that the Executive Order improperly drives up prices and contravenes other laws requiring full and open competition in contract procurement. In sum, he tossed the Order as being arbitrary and capricious.
01.07.2025From Backcourt To The Gridiron, Universities Oppose The NLRB’s Enforcement Position Regarding Their Athletes On New Year’s Eve, the union attempting to organize Dartmouth College’s men’s basketball team dropped its NLRB case after winning a groundbreaking decision in February 2024 from a NLRB Regional Director who decided that the players were employees of the College, eligible to unionize, and ordered a secret-ballot election which the union won. However, Dartmouth appealed the Regional Director’s decision, including the decision to hold an election, to the Biden-appointed Board members of the NLRB, and the appeal was pending when the union dropped its case.
10.24.2024FTC Rule On Non-Competes Is Bruised But Not Yet Beaten As FTC Appeals, While NLRB Continues To Challenge Non-CompetesIn April 2024, the FTC issued a Rule declaring invalid most existing non-compete agreements and prohibiting most employers from entering into new non-compete agreements after September 3, 2024, with few exceptions. Three lawsuits were filed challenging the FTC Rule - - two in Texas and one in Philadelphia. The Philadelphia lawsuit resulted in the court’s denying a motion to stay enforcement of the Rule on July 23, 2024. Judge Hodge then set a deadline of September 20, 2024 for the plaintiff, ATS Tree Service, to file a motion for summary judgment, a deadline that was extended twice. On October 4, ATS withdrew its Complaint, thereby ending this challenge and any right to appeal.
10.11.202410th Birthday Wishes to the Affordable Care Act’s Employer MandateThe Patient Protection and Affordable Care Act (“ACA”) was signed into law by President Obama on March 23, 2010. ACA affected health insurance coverage, costs and preventive care. It also established the Health Insurance Marketplace allowing individuals with certain income thresholds to obtain affordable health care regardless of employment status. The Biden Administration reported that 21.3 million people selected ACA Health Insurance Marketplace coverage in the 2024 open enrollment period.
10.09.2024Three Strikes: Lessons Learned From The ILA, Autoworkers, & Actors StrikesNow that the ILA short-lived but eventful strike is over, it is important to understand what this strike and the two noteworthy strikes of last year by the Autoworkers and the Actors-Writers have in common and what we might learn from them. Technology. Or, to put it a bit more expansively, the march of advancing technology pitted against the anxieties over job loss. The Autoworkers’ union picketed in part because of job vulnerability due to the increasing market share of electric cars, which require a different process to manufacture. Actors and Writers protested the way artificial intelligence is affecting and will affect their work. The ILA struck in part due to the threat automation presents to their jobs on the docks. The strikes were all viewed as successful by the unions because of significant wage increases. But were they successful at stemming the tide of technology or have they just plugged the dam? Put another way, what can employers do to embrace technology while also embracing its employees and maintaining labor peace?
10.08.2024Should I Stay Or Should I Go: The NLRB Weighs InOn October 7, 2024, NLRB General Counsel Jennifer Abruzzo announced to her staff and the public that she intends to prosecute employers for “Stay-or-Pay” employment agreements, agreements that require a new employee to repay outlays for training if the employee leaves within a certain timeframe after being hired. The General Counsel reasons that such provisions are “presumptively unlawful” under Section 7 of the National Labor Relations Act, which protects the rights to unionize or engage in protected concerted activity, because they force employees to remain in jobs they would otherwise leave, or deter an employee from union activity so as not to risk termination and the repayment obligation.
07.09.2024Chevron’s Passing Likely to Reshape Labor and Employment Law as SCOTUS Questions Presumption of Agency Subject Matter ExpertiseOn June 28, 2024 the Supreme Court overruled the 40-year-old landmark ruling known as Chevron, a doctrine of administrative law that has until now required courts to defer to federal agencies’ interpretations of ambiguous statutory language. By doing so, the Court has created opportunities for court challenges to agency regulations including those issued by federal labor law and equal employment law agencies.
06.25.2024SCOTUS Requires NLRB to Meet Traditional Standards for Preliminary Injunctive Relief On June 13 the U.S. Supreme Court heightened the standard a court must apply to an NLRB request for a preliminary injunction against an employer accused of violating federal labor law. In resolving a circuit split in which courts applied different tests in determining when to grant preliminary injunctive relief, the Court held that district courts should apply the traditional, four-pronged test in determining whether to grant a preliminary injunction under Section 10(j) of the National Labor Relations Act (Act). Starbucks Corp. v. McKinney.
06.21.2024The NLRB Gives An Employee Four Strikes And He's Still Not Out The National Labor Relations Act gives employees the right to engage in activities together with and on behalf of their co-workers to improve working conditions, called protected concerted activity. The question frequently arises as to the outer bounds of this right. How far can an employee take the cause?
05.13.2024FTC’s Final Rule on Non-Competes May Not be the Final WordIn a controversial move, on April 24, 2024 the Federal Trade Commission (“FTC”) announced that beginning September 4, 2024, it will enforce its Final Rule banning most non-compete agreements that seek to limit a worker’s ability to change jobs. The Rule also requires employers to notify those workers who have non-compete agreements that are nullified by the Rule that these agreements are no longer enforceable once the Rule takes effect; written notices must be sent no later than September 4, 2024. The exceptions to the FTC Rule are few, and extend to non-compete agreements (i) entered into with a business’s senior executives before September 4, 2024, (ii) entered into between a buyer and a seller as part of a bona fide sale of a business, or (iii) that are part of a franchisee-franchisor relationship.
04.24.2024Patrick McGovern Shares Insights "Noncompete decision: N.J. lawyers express some concern — and a lot of caution"The decision by the Federal Trade Commission to ban most noncompete agreements — and have the ruling go into effect in 120 days — certainly sent shockwaves throughout the business community Tuesday night, hours after it was released.
On Wednesday, numerous New Jersey lawyers offered the following advice: Slow down, take a minute to gain an understanding of what this really means — and understand there is little chance this will take effect in 120 days, if at all.
Lawsuits challenging the ruling are being filed.
03.25.2024Genova Burns Congratulates Firm Attorneys Named to Super Lawyers Listings for 2024Genova Burns congratulates firm attorneys who have been named to the 2024 Super Lawyers & Rising Stars listings by Super Lawyers, a Thomson Reuters-owned rating service of outstanding lawyers.
Receiving special recognition, Genova Burns' Chairman Angelo J. Genova, Esq. was once again named to the New Jersey Super Lawyers Top 10 Lawyers and Top 100 Lawyers listings.
03.01.2024H-1B Lottery Process Begins On March 6thOn Wednesday, March 6, 2024, USCIS will open its H-1B cap registration process for fiscal year 2025, informally known as the H-1B Lottery. Since 2020, USCIS has implemented an electronic registration system that requires the sponsoring employer to complete a few information forms and pay a registration fee. For the past three years, the registration fee was $10. For 2024, the registration fee increases to $215 for each visa beneficiary.
01.24.2024USDOL Wage-Hour Division Final Rule on Independent Contractor Status Reverts to Pre-Trump Rule and Rejects “Core Factor” TestOn January 9, 2024 the U.S. Department of Labor (DOL) released a final rule that will apply beginning March 11, 2024 in determining whether a worker can be classified as an independent contractor as opposed to an employee under the Fair Labor Standards Act (FLSA). The 2024 Rule modifies Wage and Hour Division regulations by adopting an analysis that the agency claims is more consistent with judicial precedent and the FLSA’s text and purpose than the final rule issued by the agency during the final days of the Trump Administration (2021 Rule).
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