Court Cases & Legislation

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On August 26, 2026, National Labor Relations Board General Counsel Crystal S. Carey issued Memorandum GC 26-04, “Further Guidance Regarding General Counsel Priorities,” identifying the Board precedents she has already asked, or intends to ask, the Board to reconsider. For employers, the memo is best read as a roadmap: it signals where the General Counsel’s office will be pushing to unwind previous Board law, and where employers currently defending unfair labor practice charges may want to preserve arguments for later review.

Given the variety and complexity of tasks associated with operations management, automated systems, including those utilizing artificial intelligence (AI), are increasingly deployed by businesses to improve overall efficiencies. As part of this effort, the use of AI or related automated systems to track and monitor production, including employee activities, is becoming widespread. A 2022 New York Times survey revealed that eight out of the 10 largest private U.S. employers track individual workers, many in real time, to assess their productivity. Any process that utilizes electronic devices capable of being connected via network technology suddenly becomes a trove of data points that can be used to monitor or improve the process—or the employees engaged in the process.

United States National Labor Relations Board (NLRB)

Employers in the United States received a significant win on March 8, 2024, when a federal court in Texas struck down the National Labor Relations Board’s (“Board”) expansive new “joint employer” rule, and upheld the existing (and more employer-friendly) 2020 rule. This rule would have expanded the circumstances under which two businesses could be designated as “joint employers,” and that could have significantly altered the legal landscape attendant to various workplace relationships.

On August 2, 2023, the National Labor Relations Board (“NLRB” or “Board”) issued its anticipated ruling in Stericycle, Inc., reversing the Trump-era Boeing decision that famously implemented a three-category test for balancing whether workplace rules unlawfully interfered with employees’ rights to engage in “protected concerted activity” under Section 7 of the National Labor Relations Act (“NLRA” or the “Act”).

On May 1, 2023, the National Labor Relations Board (“NLRB”) issued its decision in Lion Elastomers and United Steelworkers, making it more difficult for employers to discipline employees for outbursts and similar misconduct while employees are engaged in protected concerted activity under Section 7 of the National Labor Relations Act (the “Act”).

On August 29, 2022, the NLRB issued its decision in Tesla, Inc., overruling precedent that allowed employers to enforce facially-neutral dress codes to prohibit wearing non-conforming attire, including union insignia and union logos. Now, employers must allow employees to wear union attire absent a showing of “special circumstances.”

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On June 1, 2021, in a 5-2 decision, the Missouri Supreme Court sitting en banc affirmed a circuit court decision that voided in its entirety HB 1413, which was enacted by the Missouri legislature in 2018 and sought to change collective bargaining laws for public-sector labor organizations in the state of Missouri. We previously discussed the circuit court’s decision in our December 14, 2020 post, Missouri Supreme Court to Decide Constitutionality of Public Reform Law. While the circuit court decision permanently enjoined the Missouri State Board of Mediation and Missouri Department of Labor and Industrial Relations from implementing and enforcing the law, the law was not void with respect to entities that were not parties to the litigation—until the Missouri Supreme Court released its decision. As of June 1, 2020, HB 1413 is void in its entirety with respect to all entities in Missouri.

It’s become increasingly common for businesses to subcontract workers to perform jobs at a location that is shared with the business or other neutral third parties. When picketing at common job sites shared by the employees of the contractor/employer and the neutral third party, the right of subcontracted employees to engage in collective action at a shared job site must be reconciled with the prohibition on secondary picketing against neutral third parties under the National Labor Relations Act (NLRA). In Service Employees International Union Local 87 v. NLRB (Service Employees International), the Ninth Circuit held that the Board erred in concluding that picketing constituted unlawful secondary picketing where the picketing activity at a shared job site clearly identified the primary employer as the target of the picketing and did not direct coercive activity against neutral third parties.