President Donald Trump’s recent attacks on the National Relations Labor Board (NLRB) have disrupted the Board’s operations. The quasi-judicial body traditionally consists of five board members appointed by the president with the consent of the Senate. But recently, partisan congressional gridlock in the Senate stalled replacements for two Board member vacancies. Since Trump assumed office on January 10, 2025, his directives and firings have forced the Board to further undergo a chaotic restructuring of its remaining three board members. 

On his first day in office, Trump appointed current member Marvin E. Kaplan to be the Board chairman, and later fired Democratic board member Gwynne Wilcox. The NLRB needs at least three Board members to establish a quorum, but without Ms. Wilcox, the Board only has two members.

A growing concern is that Trump’s true intent is to paralyze the functioning of the NLRB. Without a quorum, the NLRB is unable to issue new decisions or respond to appeals, which benefits employers. Companies who receive adverse rulings from Administrative Law  Judge can simply appeal to the quorum-less NLRB. The Board is without power to review the charge, meaning it would remain in limbo indefinitely. Meanwhile, employers may simply continue business as usual.

Wilcox filed a lawsuit alleging her firing was unlawful. A federal judge agreed, ordering her reinstatement. But a federal appeals court stayed the order reinstating her, signaling it intends to rule in Trump’s favor.
​
It’s likely that the Supreme Court will weigh in on this issue. The case will test the Supreme Court’s willingness to reign in Trump’s power. The Supreme Court historically upheld job removal protections for agency officials under the 90-year-old precedent Humphrey’s Executor. The Court has recently started chipping away at the ruling but has yet to outright overrule the precedent. If the Supreme Court rules in favor of Trump it could mean dramatic changes to almost all administrative agencies. 

California’s new state law banning “captive audience” meetings took effect on January 1, 2025. Senate Bill 399 (S.B. 399) prevents California employers from forcing employees to attend meetings or listen to communications about the employer’s religious, political, or union views. The bill was sponsored by the Teamsters Union and authored by State Senator Aisha Wahab (Dem. - Sen. Dist. 10). Supporters of the law argue that it promotes fairness and equity. They reason that employers hold a disproportionate amount of power over their employees and should not be able to force their workers to attend political meetings with no relevance to their jobs. Employees effectively become a “captive audience,” fearful of retaliation and subject to coercion.

Opponents of the law, primarily business and commerce groups, have filed a lawsuit challenging the constitutionality of S.B. 399. They argue that it infringes on an employer’s First Amendment right to free speech and Fourteenth Amendment right to equal protection. They claim that the ban discriminates against the employer’s viewpoint and chills their speech on political subjects. In response, the American Federation of Labor and the Congress of Industrial Organizations (AFL-CIO) released a legal memorandum defending the constitutionality of the ban. The AFL-CIO argues that the law constitutionally restricts an employer’s conduct – not speech – especially when aimed at a nonconsenting audience.

The legal future of S.B. 399 remains unclear. California’s state law mirrors similar laws enacted by states across the nation that have also faced legal challenges with mixed results. Further complicating matters, the Trump administration recently fired the chair of the NLRB rendering the Board without a quorum or the ability to issue new decisions. Trump is likely appoint a full slate of Republican Board members friendly to management and willing to overturn employee-friendly NLRB precedent prohibiting captive audience meetings. Simultaneously, on February 16, 2025, Trump’s appointee for the NLRB General Counsel, William B. Cowen, released a memorandum (GC 25-05) outlining the labor policy initiatives for Trump’s second term. Among the rollback of Biden-era practices, Cowen has rescinded guidance on the NLRB’s prior position supporting the ban on captive audience meetings. 
​
For more on the latest developments in employment law, visit our blog here. If you believe your employer may have violated workplace laws, click here to get in touch with our office.

Last week, the National Labor Relations Board (NLRB) alleged in a complaint that the University of Southern California (USC), the Pac-12, and the National Collegiate Athletics Associations (NCAA) are joint employers and willfully misclassify their football players, men’s basketball players, and women’s basketball players as “non-employee student athletes” to discourage them from engaging in protected activities such as unionization. The complaint calls for USC, the Pac-12, and the NCAA to reclassify those athletes as “employees” in their handbooks and rules.

The employment-status of college athletes is the most pressing issue facing the world of college sports and threatens to upend the foundation of the multibillion-dollar industry. For decades, the NCAA has argued that amateurism -  a model in which college athletes get 0% of the revenue generated by their sports – was necessary to maintain the value and integrity of college athletics.

However, as coaching salaries have ballooned and TV deals for college sports approach nearly $10 billion, the amateurism model is increasingly seen as exploitative and has come under increasing scrutiny, leading some experts to expect the model to collapse under mounting pressure in federal courts and state legislatures.

If the NCAA’s amateurism model were to collapse, whether due to the aforementioned pressures or NLRB complaints, the repercussions would be monumental, prompting questions of how to compensate over 500,000 NCAA athletes, 85% of which live below the poverty line.
​
According to the NLRB’s complaint, a hearing on their case is scheduled for November 7, 2023, in Los Angeles. 

Lauren Teukolsky’s commentary was featured this week in a Law360 article discussing the future of non-disclosure agreements (NDAs) in severance agreements in light of the National Labor Relations Board’s recent ruling in McLaren Macomb. In McLaren Macomb, the NLRB found that offering severance agreements to employees that include NDAs and non-disparagement clauses is unlawful because doing so dissuades them from engaging in employee activity that is protected by Section 7 of the National Labor Relations Act, such as discussing their working conditions or pay.

Following the NLRB’s decision, however, some attorneys have expressed skepticism that employers will tailor their severance agreements to comply with the NLRB’s ruling. Ms. Teukolsky discussed her own experience with severance agreements in California following the state’s implementation of laws to restrict the use of NDAs and non-disparagement:

“’After California passed its own restrictions, what I'm seeing is employers will continue to include very broad nondisparagement provisions, and then they'll have a carveout’ stating that nothing in the agreement is intended to violate the law, Teukolsky said. ‘And when I come back and say, 'This nondisparagement is too broad,' they say, 'Well, we have a carveout.’'"

The NLRB decision, along with the General Counsel’s memo about the decision, suggest that carveouts are not sufficient to overcome the chilling effect of NDAs and non-disparagement provisions.  The memo states: “It is critical to remember that public statements by employees about the workplace are central to the exercise of employees’ rights under the Act.”

The McLaren Macomb decision is a victory for workers that should be celebrated.  Employers act at their peril if they continue to include overly-broad NDAs and non-disparagement provisions in any contract they ask an employee to sign, whether it be an employment agreement signed on hire, a severance agreement offered to a laid-off employee, or a settlement agreement to settle claims that have been filed. 

To read the article in its entirety, click here. If you have questions about a severance agreement you’ve received and want to get in touch with our office, click here. 

On February 22, the NLRB (National Labor Relations Board) ruled that severance agreements preventing laid-off employees from making publicly disparaging statements about their employer are generally illegal.  The NLRB also ruled that severance agreements may not include blanket confidentiality provisions that prevent employees from speaking with anyone else about the terms of the agreement. The ruling overturns a 2020 decision by the then Republican-controlled board that found such agreements were not illegal on their face.

The NLRB is a federal agency tasked with safeguarding employees’ rights and preventing unfair labor practices. The Board’s five members are appointed by the President. During President Biden’s administration, the Democratic-controlled Board’s rulings have largely been worker- and union-friendly.

Wednesday’s ruling is important because it reinstates what until 2020 had been a “longstanding precedent” preventing corporations from asking laid-off employees to waive rights under the National Labor Relations Act in order to receive severance. Under the Board’s recent ruling, employers may no longer withhold severance to silence employees and prevent them from publicly discussing abuses at the workplace, including sexual harassment and assault. Severance agreement clauses preventing employees from discussing workplace misconduct are frequently referred to as “gag” clauses.
​
Lauren Teukolsky has reviewed severance agreements and fought for workers’ rights for over 20 years. If you believe you have received an illegal severance agreement, click here to get in touch with our office.