Key Highlights NLRB Poised for a Partisan Shift: With the Senate HELP Committee advancing two of President Trump’s nominees, the NLRB may soon regain a quorum and shift to its first Republican-led majority since 2021 — potentially signaling changes to existing federal labor law. Expanded Remedies Under Thryv Remain in Force — for Now: The NLRB’s Thryv, Inc. decision (2022) broadened employer liability in unfair labor practice cases by requiring compensation for all “direct or foreseeable” harms. Courts Split on the NLRB’s Authority: Federal appellate courts have issued conflicting rulings on the NLRB’s power to award these expanded damages — creating uncertainty until the NLRB or the Supreme Court provides further clarity. Employers Should Prepare for Policy Shifts: A Republican-led majority on the NLRB could narrow Thryv remedies and reexamine key doctrines affecting joint-employer standards, independent-contractor classifications, and union election rules. Employers should monitor developments closely and seek counsel on pending or potential labor disputes. On Oct. 9, 2025, the Senate Health, Education, Labor & Pensions (HELP) Committee advanced two of President Trump’s three pending nominations to the National Labor Relations Board (NLRB). Although the third nominee was tabled following a divided vote, the approvals signal the NLRB may soon regain a quorum and operate under a Republican-led majority for the first time since 2021. Why It Matters Historically, when the NLRB flips partisan control, prior precedent — especially decisions viewed as favorable to labor or broad in scope — often comes under review. Large employers should monitor several key implications: Unfair labor practice liability remains significant under current NLRB law, and U.S. Courts of Appeal have disagreed on whether the NLRB has exceeded its statutory authority. In its December 2022 decision in Thryv, Inc., 372 NLRB No. 22 (Dec. 13, 2022), the NLRB significantly expanded its remedial authority in unfair labor practice cases. The decision clarified that in all cases where a standard make-whole remedy would apply, employers must “compensate affected employees for all direct or foreseeable pecuniary harms . . . suffer[ed] as a result of the [employer’s] unfair labor practice.” The NLRB expressly moved beyond traditional backpay and reinstatement relief to authorize reimbursement of additional costs like out-of-pocket medical expenses and credit card debt. Appellate courts have disagreed on the NLRB’s authority to expand unfair labor practice remedies.Most recently, the Court of Appeals for the Ninth Circuit upheld the NLRB’s use of the Thryv framework in International Union of Operating Engineers, Local 39 v. NLRB. The Ninth Circuit found the NLRB did not exceed its statutory authority in awarding Thryv damages and enforced the NLRB’s remedy order. The Court of Appeals for the Third Circuit took a different tack earlier this year. In its Starbucks-related decision, the Third Circuit held the NLRB’s remedial order for consequential damages exceeded the NLRB’s authority. It reasoned that Congress did not empower the NLRB to award full compensatory damages of that nature. If the NLRB retains a quorum, we expect it to revisit the expanded remedies under Thryv. If the full Senate confirms the two nominees to the NLRB, employers should anticipate that the NLRB will revisit the remedial doctrine set forth in Thryv. While the second Trump administration has indicated an intent to be more labor friendly, a Republican majority may choose to reinstate narrower remedial parameters, limit the “direct or foreseeable” horizon, or otherwise reduce employer exposure. Until such a shift occurs, however, the current Thryv-based standard remains in force and applicable before the NLRB and across circuits that have upheld it. Looking Ahead The HELP Committee’s approvals signal a likely realignment in the months ahead but not an immediate one, as it remains unknown as to when or whether the NLRB will have a quorum. A new NLRB majority may act quickly once seated to revisit recent precedents—not only Thryv, but also rules governing joint-employer status, independent-contractor classifications and union election procedures. The coming months will be a period of heightened uncertainty for employers navigating ongoing unfair labor practice matters. Employers facing organizing activity or unfair labor practice allegations should consult with an experienced member of Polsinelli’s Management-Labor Relations Practice Group to assess how forthcoming NLRB changes may affect exposure, negotiation strategy and overall labor-relations planning.

On July 17, 2025, President Trump announced his selection of two choices for the National Labor Relations Board (NLRB). The President tapped Scott Mayer and James Murphy to fill those seats. If confirmed, Mayer and Murphy would fill two seats that have been vacant since President Trump returned to the White House. Mayer currently serves as Boeing’s Chief Labor Counsel and has been in that role since 2022. Murphy is a longtime NLRB official who first clerked for the NLRB in 1974 and most recently served as Chief Counsel to Marvin Kaplan, chair of the NLRB. Both bring strong management-side credentials to the table. Subject to Senate confirmation, Mayer and Murphy filling two of the three vacant seats will provide the NLRB with a quorum and enable it to issue decisions, engage in rulemaking, and fulfill its statutory duties. The NLRB has lacked a quorum since President Trump’s controversial termination of former member Gwynne Wilcox. Those in opposition to their nomination argue that, procedurally, they should not be confirmed until the validity of the termination of Wilcox is resolved by the federal courts. For questions regarding these nominations, the anticipated impact of the NLRB regaining a quorum, or other labor-related issues, please contact a member of Polsinelli’s Management-Labor Relations Practice Group.

The General Counsel of the National Labor Relations Board (“NLRB”) set her sights on a new target with the latest memorandum: non-competition agreements. The memorandum, while not binding, lays out the General Counsel’s belief that the proffer, maintenance, and enforcement of agreements containing provisions prohibiting employees from competing with their former employer are unlawful because they have a tendency to chill employees’ rights under Section 7 of the National Labor Relations Act, which protects employees’ right to organize. Indeed, General Counsel Abruzzo states that “retaining employees or protecting special investments in training employees are unlikely to ever justify an overbroad non-compete provision.” Specifically, General Counsel Abruzzo provides that a non-compete provision in an employment or severance agreement is unlawful “when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work.” These provisions, General Counsel Abruzzo believes, interfere with employees’ ability to: Concertedly threaten to resign to secure better working conditions; Carry out concerted threats to resign or otherwise concertedly resign to secure improved working conditions; Concertedly seek or accept employment with a local competitor to obtain better working conditions; Solicit their co-workers to go work for a local competitor as part of a broader course of protected concerted activity; Seek employment, at least in part, to specifically engage in protected activity, including union organizing, with other workers at an employer’s workplace. The memorandum notes that non-compete provisions that only restrict an individual’s managerial or ownership interest in a competitor could be lawful. Furthermore, it is important to note while the National Labor Relations Act applies to all workforces, including non-union workforces, it does not apply to statutory supervisors or managers. Consult your Polsinelli attorney for assistance evaluating your non-competes against this new guidance as well as other recent developments such as the Federal Trade Commission’s pending proposal addressing non-competes.

On March 22, 2023, the General Counsel of the National Labor Relations Board (the “Board”) issued a memorandum purporting to provide guidance in response to inquiries about the Board’s February 2023 decision in McLaren Macomb (which we covered in a previous blog post). In that decision, the Board held that the merely offering of a severance agreement containing broadly drafted nondisparagement and confidentiality provisions was unlawful under the National Labor Relations Act (the “Act”). The decision raised more questions than answers, which employers hoped would be resolved by the much-anticipated guidance from the General Counsel. While the guidance does not provide any specific examples of clauses that are permissible or impermissible, the General Counsel did offer further guidance on her interpretation of the decision that employers should weigh in drafting and enforcing separation agreements. The key takeaways are as follows: RetroactiveApplication. The memo confirmed that the decision applies retroactively, including to agreements entered prior to February 21, 2023. Further, the memo stated that the General Counsel believes that, despite the Act’s six-month statute of limitations period, “maintaining and/or enforcing a previously-entered severance agreement with unlawful provisions” will constitute a continuing violation, such that an unfair labor practice (ULP) charge would not be time-barred if filed beyond that six-month window. Application to Supervisors. While the General Counsel correctly noted that supervisors are not protected by the National Labor Relations Act, she references at least one scenario under which she “believe[s]” that severance agreements proffered to statutory supervisors may fall within the decision. Specifically, the General Counsel indicated that a provision that prevents a former supervisor from participating in a Board proceeding could be unlawful. Potential Consequences of Overbroad Clauses. The General Counsel indicated that Regions should generally seek to void only unlawful provisions, rather than the entire agreement. Foreshadowing the Board’s Next Targets. In addition to confidentiality and nondisparagement clauses, the General Counsel dubbed a number of other common contractual provisions as “problematic” and potentially unlawful, including restrictive covenants, “broad liability releases and covenants not to sue that may go beyond the employer and/or may go beyond employment claims and matters as of the effective date of the agreement,” and requirements that an employee participate in future investigations or proceedings. Polsinelli will continue to monitor developments from the Board regarding severance agreement.  Contact your Polsinelli attorney for further information on the General Counsel’s memorandum and for assistance in navigating the potential impact of the decision.

The National Labor Relations Board (the “Board”) issued another precedent-shifting decision, this time taking aim at provisions commonly included in severance agreements. In McLaren McComb, an employer now violates Section 8(a)(1) of the National Labor Relations Act (“the Act”) when it merely “proffers” a severance agreement that conditions severance benefits on the waiver or restriction of an employee’s exercise of his or her rights afforded by the Act, including broadly written provisions prohibiting the employee from disparaging the employer or disclosing the terms of the agreement. In its decision, the Board reasoned that a broad non-disparagement provision in a severance agreement is unlawful because “public statements by employees about the workplace are central to the exercise of employee rights under the Act.” Section 7 of the Act provides protections for employees who communicate with a wide variety of third parties (including on social media) regarding terms and conditions of employment, an ongoing labor dispute, and even former supervisors and coworkers. Thus, the Board reasoned, that conditioning receipt of severance benefits on acceptance of a non-disparagement provision has a chilling tendency on workers’ ability to communicate to improve the terms and conditions of their employment and, thus, constitutes a violation of the Act. The Board similarly reasoned that provisions that prohibit disclosure of the agreement’s terms “to any third person” are unlawful because of their chilling effect on the exercise of an employee’s Section 7 rights. While the Act applies to all employers – even those without a unionized workforce –employers still have opportunities to protect themselves. For example, the decision does not apply to employees who are excluded from the Act’s coverage, including supervisors. The ruling also does not grant employees carte blanche to say whatever they want. Rather, the Board placed limitations on its ruling, stating that “employee critique of employer policy pursuant to the clear right under the Act to publicize labor disputes is subject only to the requirement that employees’ communications not be so disloyal, reckless, or maliciously untrue.” Contact your Polsinelli attorney for assistance in navigating the decision’s potential impact on your agreements.

This week, the National Labor Relations Board (NLRB) reversed a 2019 decision concerning union apparel bans in the workplace. This decision was the first of the Biden Administration era NLRB to shift precedent. In the split decision, the NLRB ruled that any attempt by an employer to restrict an employee’s ability to wear union clothing or insignia is “presumptively unlawful.” Now, employers may only restrict workers from wearing pro-union clothing or insignia if they are able to establish “special circumstances,” representing a heightened burden for employers to justify limitations on employees’ apparel. At issue was the employer’s apparel policy, which required employees to either wear black polos imprinted with the company’s logo or a black shirt with no logo. During a union organizing campaign, employees attempted to wear shirts bearing a union logo. The NLRB concluded that the employer’s policy implicitly prohibited employees from wearing pro-union apparel and insignia without the presence of special circumstances, as the employer had previously permitted production employees to wear different colored shirts or shirts with logos unrelated to the employer. Because no special circumstances were present to justify the policy, the NLRB ordered that the company rescind its policy prohibiting employees from wearing black shirts with pro-union insignia. This decision marks the first time the NLRB has issued a ruling that overturns or materially shifts Board precedent under the Biden Administration. Employers should be mindful of the changing landscape and are advised to contact their Polsinelli attorneys should they have questions on how such decisions impact them.

The American Rescue Plan that was sent to President Biden’s desk on March 11, 2021 includes an $86 Billion aid package that provides financial assistance to underfunded multiemployer pension plans facing critical or declining financial status. Upon signature, the bill will provide eligible underfunded plans with “special financial assistance.” The special financial assistance is designed to cover the payments of accrued pension benefits through the 2051 plan year and is not subject to any repayment obligations. Multiemployer pension plans eligible for special financial assistance include plans meeting any one of the below criteria: Plans in critical and declining status in any plan year from 2020 through 2022. Plans that have had a suspension of benefits approved under the provisions of the Multiemployer Pension Reform Act of 2014 as of the date the new American Rescue Plan becomes law. Plans certified by an actuary to be in critical status in any plan year from 2020 through 2022, have a modified funded percentage of less than 40 percent, and a ratio of less than 2 active participants to 3 inactive participants. Plans that became insolvent after December 16, 2014 that have not been terminated by the date the American Rescue Plan is signed into law. The Pension Benefit Guaranty Corporation (“PBGC”) has 120 days to issue regulations or guidance setting forth application requirements for special financial assistance. Because eligible plans have through December 31, 2025 to apply for special financial assistance, plans may not receive any special financial assistance for several years. Prior to sending the bill back to the House of Representatives, the Senate removed a significant provision concerning employer withdrawal liability. The original language drafted by the House of Representatives provided that an employer’s withdrawal liability would be calculated without taking into account the special financial assistance received by a pension plan for 15 calendar years following the receipt of such assistance. While the removal of this language may allow for quicker relief for employers, they are left without clarity as to how and when the special financial assistance will impact their withdrawal liability, if at all. Instead, employers must wait for the PBGC to issue regulations or guidance on the issue. The legislation provides extensive assistance to pension plans that were suffering long before the COVID-19 pandemic and ensures that many retirees will receive their full benefits. However, it does not freeze accruals, curtail the practices that led to the pension plans’ current underfunding problems, or otherwise provide guidance as to how the plans will function financially in 30 years when the special financial assistance ends. Polsinelli attorneys will continue to monitor the PBGC’s issuance of regulations and other developments and remain prepared to assist with any questions.

On August 9, 2019, the National Labor Relations Board (“NLRB” or “Board”) issued the first of an anticipated sequence of regulations addressing certain union election procedures.  The proposed rule, published in the Federal Register, proposes modifying three Board policies governing election processes, including: The process for adjudicating  “blocking charges”; The voluntary recognition bar; and Presumed collective bargaining relationships in the construction industry. Board Chairman John Ring, Member Marvin Kaplan and Member Bill Emanuel voted to approve the proposed rule for publication, while Member Lauren McFerran dissented. The proposed rule first addresses the Board’s policy on blocking charges, which are allegations that a party to a union election unlawfully coerced workers. Because blocking charges ultimately delay elections pending the resolution of Board proceedings, the proposed rule would replace the current policy with a “vote-and-impound system,” in which the election would still proceed, and the Board would seize ballots cast in an election during the pendency of the unfair labor practice charge. The proposed rule further addresses the Board’s voluntary recognition bar standard, which currently prohibits challenges to whether a union has majority support to proceed with an election for a “reasonable period of time” (interpreted to be six months to a year) after an employer voluntarily recognizes a union. The proposed rule would shorten the voluntary recognition bar to 45 days. Finally, the proposed rule would heighten the evidentiary standard for a union that wishes to demonstrate a presumed collective bargaining relationship in the construction industry without a union vote pursuant to Section 8(f). Specifically, the proposed rule would require a union to present “extrinsic evidence” that its recognition “was based on a contemporaneous showing of majority employee support,” such as a petition or signed authorization cards. In dissent, Member McFerran opposed the proposed rulemaking, writing that the majority’s proposal “fails to meet even minimal standards of reasoned decision-making” that must be “fundamentally reassess[ed].” While still subject to notice-and-comment requirements, the proposed changes are good news to employers. Employers with questions regarding the proposed rule, or union election proceedings generally, should consult with competent counsel.Stay tuned to Polsinelli at Work for further updates.

Recently, the United States Eighth Circuit Court of Appeals reaffirmed that regular and reliable attendance is an essential function of most jobs under the Americans with Disabilities Act (“ADA”).  Lipp v. Cargill Meat Solutions Corp., 911 F.3d 537 (8th Cir. 2018). In that case, the parties agreed that the employee had a disability.  Even so, the employer terminated her employment after she accumulated 195 violations of the employer’s attendance policy. The employee sued, alleging intentional discrimination and failure to accommodate under the Iowa Civil Rights Act and the ADA.  The district court granted summary judgment to the employer, and the employee appealed. The Eighth Circuit affirmed the district court’s holding, reasoning that the employee failed to establish that she was a qualified individual with a disability who was entitled to the ADA’s protection because she could not regularly and reliably attend work—an essential function of her position. Important to the decision, the employer actively maintained a written attendance policy that expressly stated “regular attendance is crucial” to its operations, and specified that excessive violations of the policy could result in termination of employment. The Eighth Circuit’s decision in Lipp aligns with several other recent decisions from the Second Circuit (Vitti v. Macy’s Inc., 2018 WL 6721091, No. 17-3493 (2d Cir. Dec. 21, 2018)), the Fifth Circuit (Credeur v. State of Louisiana, 860 F.3d 785 (5th Cir. 2017)) and the Ninth Circuit (Ogden v. Public Utility District No. 2 of Grant Cty., 722 Fed. App’x 707 (9th Cir. 2018)), which all held that individuals who are unable to regularly attend work are not qualified individuals with a disability for purposes of the ADA.  In some instances, employers may have to provide qualified workers with leave as a reasonable accommodation.  However, the ADA does not require employers to 1) provide unlimited leave; 2) allow employees to work from home indefinitely; or 3) abandon their work attendance policies when the employer determines regular work-site attendance is an essential function of a given position. These rulings counsel that employers would do well to maintain written attendance policies that provide for progressive discipline, and should also review job descriptions to ensure they reflect the employer’s need for regular, physical on-site attendance (if attendance is indeed job-related and consistent with business necessity). Employers with questions regarding the ADA and attendance policies or job descriptions should consult with competent counsel.

On Tuesday November 6, 2018, the U.S. Supreme Court unanimously ruled that the Age Discrimination in Employment Act (“ADEA”) applies to state and local government employers with fewer than 20 employees.  The Supreme Court’s decision, in Mount Lemmon Fire District v. Guido, affirmed the U.S. Ninth Circuit Court of Appeal’s ruling and resolved a Circuit Court split regarding the ADEA’s coverage of public employers. Due to budgetary shortfalls, the Mount Lemmon Fire District, a political subdivision in Arizona, terminated its two oldest full-time firefighters, John Guido and Dennis Rankin, who sued alleging discrimination under the ADEA. Mount Lemmon sought dismissal of the case on the grounds that it was not an employer as defined and  covered by the ADEA. Upon enactment in 1967, the ADEA covered only private sector employers.  However, in 1974, Congress amended the ADEA to redefine an employer as “a person engaged in an industry affecting commerce who has twenty or more employees…[t]he term also means (1) any agent of such a person, and (2) a State or political subdivision of a State…”  (emphasis added). The statutory language proved pivotal in the case, as the Supreme Court held the phrase “also means” created an entirely new, separate category of employer covered under the ADEA. The Supreme Court reasoned that because Congress did not apply the numerosity requirement of private sector employers to the political subdivisions, small state and local government subdivisions need not have 20 or more employees to fall within the ADEA’s scope. While Mount Lemmon warned that this interpretation would too broadly extend the ADEA’s scope, potentially causing increased litigation and legal costs and threatening necessary public services, the Supreme Court ultimately disagreed. Justice Ruth Bader Ginsburg, who authored the opinion, acknowledged that this interpretation would give the ADEA “a broader reach than Title VII. But this disparity is a consequence of the different language Congress chose to employ.”  The Court was further unconcerned with the risk of emergency service shrinkages, noting that the Equal Employment Opportunity Commission has followed this same interpretation for 30 years without problematic public services cuts.  The Court concluded that the ADEA’s definition of employer left “scant room for doubt” that state and local governments are employers under the ADEA, regardless of their number of employees. With its broader reach, state and local employers should be mindful of the ADEA’s coverage and requirements. The Polsinelli Labor and Employment attorneys are here to address and assist with any ADEA questions or cases.

By letter dated June 5, 2018, National Labor Relations Board Chairman John Ring announced that the Board will issue a proposed regulation to determine when employers may be considered joint employers under the National Labor Relations Act “as soon as possible, but certainly by this summer.” In the letter, Chairman Ring argued that notice-and-comment rulemaking was the most prudent way to review the joint-employer standard, and further contended that establishing legal standards through precedential decisions limits the Board and results in less comprehensive rules. Per Chairman Ring: “Rulemaking offers the best vehicle to fully consider all views on what the [joint-employer] standard ought to be.” Chairman Ring emphasized that, if approved, any final rule would apply prospectively only, and would not affect pending cases. Labor watchers expect the Board to issue a Notice of Proposed Rulemaking in the coming weeks. Employers that could be affected by any changes to the current joint-employer standard would do well to closely follow the blog for further updates.

On February 21, 2018, the Eighth Circuit Court of Appeals issued new guidance regarding when and how the National Labor Relations Act (“NLRA”) protects union “salting” campaigns.  A “salting” campaign involves union members, known as “salts,” who seek to secure jobs at non-union work sites to recruit additional union members and organize the site. In Aerotek Inc. v. National Labor Relations Board, four members of the International Brotherhood of Electrical Workers Union (“IBEW”) applied for positions with Aerotek, Inc. (“Aerotek”) to attempt to recruit new members and organize the company’s non-union sites. In this case, the four “salts” were transparent about their intentions to organize the site; one stated he would accept any available position because he wanted to expose more electricians to the IBEW. Aerotek refused to hire any of the four salts, and the IBEW filed unfair labor practice charges. The Administrative Law Judge determined that Aerotek violated Sections 8(a)(1) and 8(a)(3) of the NLRA by refusing to hire or place the salts because of their background as union activists. The National Labor Relations Board (“NLRB”) affirmed the decision, which Aerotek appealed to the Eighth Circuit. On appeal, the Eighth Circuit affirmed the NLRB’s decision and provided new guidance regarding when an employer violates the NLRA during a “salting” campaign. Specifically, the Eighth Circuit stated that an employer violates the NLRA only if the NLRB’s General Counsel shows the following: (1)              The salt’s genuine interest in obtaining employment with the employer; (2)              the employer was hiring or had concrete plans to hire (or place); (3)              the salt had the requisite experience or training for the position; and (4)              anti-labor animus contributed to the decision not to hire (or place) the salt. Aerotek serves as a reminder to employers that salting campaigns may be protected activity under the NLRA, and attempts to circumvent or quash salting campaigns can result in steep penalties. Employers that are approached by applicants who express a desire to organize or further the efforts of a union should consult with labor counsel to ensure compliance with the NLRA.

Recently, NLRB General Counsel Peter Robb announced his intention to restructure the NLRB’s field office operations and revamp the NLRB’s current case processing procedures. On January 11, 2018, Robb hosted a conference call with the NLRB’s Regional Directors to inform them of his plan to reorganize the NLRB’s 26 Regional Offices into a smaller number of districts or Regions supervised by officials who would report to the General Counsel. On January 29, 2018, Beth Tursell, who heads the NLRB’s Operational Management Division and reports directly to Peter Robb, issued a “Case Processing Memo,” which sets forth a number of suggested changes to the NLRB’s procedures, including: 1) Requiring all parties to respond to inquiries from the NLRB within two days or face closure of the investigation 2) Reducing the amount of time allotted for investigations from two weeks to one week, depending on the case type 3) Directing agency officials to seek settlements in “all” cases “in lieu of litigation,” (even without approval from the Regional Director) Some of the proposals outlined in the Case Processing Memo have drawn criticism. Specifically, if the proposals are implemented, investigations will likely be shortened, which limits an employer’s ability to respond to an Unfair Labor Practice Charge.  Robb and Tursell have requested input from agency staff regarding these proposed changes. Thus, it remains to be seen whether the current proposals will be implemented “as is,” or if further changes will result prior to adoption. Employers, particularly those with unionized labor forces, would be wise to stay abreast of these and other possible changes and can do so by watching this space. Stay tuned for further updates.

On December 1, 2017, the newly appointed National Labor Relations Board (“NLRB”) General Counsel, Peter Robb, issued a memorandumstyled GC Memorandum 18-02 (the “Memorandum”), which provides insight into his likely agenda as General Counsel. While the Memorandum is relatively brief, it suggests that Mr. Robb may seek to revisit some of the policy decisions rendered by President Obama’s NLRB. The Memorandum instructs the NLRB’s Regional Offices to seek “alternative analysis” from the NLRB's Division of Advice regarding 15 separate issues before issuing Complaints, including matters that involve employer handbook rules; joint employer status; off-duty employee's access to property; protected work stoppages; expanded application of an employee's Weingarten rights; disparate treatment of represented employees during contract negotiations; establishing a duty to bargain before imposing discretionary discipline where parties have not executed initial collective bargaining agreement; dues checkoff; and appropriate remedies. The Memorandum also rescinded seven prior General Counsel Memoranda. Employers will be encouraged to note that the Memorandum expressly rescinds General Counsel Memorandum 15-04, which had barred employers from promulgating a host of seemingly innocuous rules in employee handbooks on the grounds that the rules could conceivably chill employees from exercising their Section 7 rights. Moreover, the Memorandum ended a number of initiatives that were pursued by President Obama’s NLRB, including efforts to extend NLRB decisions to electronic systems regularly used in the course of work. Employers have a number of reasons to be optimistic about the Memorandum, as it seems to portend a more employer-friendly agenda than the previous administration. However, the full implications of Mr. Robb’s tenure will more clearly be seen via Complaints that are proffered and NLRB decisions that are rendered. We will continue to report on NLRB cases and decisions here, so stay tuned.

On August 2, 2017, the Senate confirmed Marvin E. Kaplan, President Trump’s first nominee to serve on the National Labor Relations Board (NLRB). Prior to joining the Board, Kaplan spent the majority of his career in government practice, most recently as the chief counsel of the Occupational Safety and Health Review Commission (OSHRC). Along with the confirmation of William Emanuel on September 27, 2017, President Trump’s second nominee to the NLRB, it was widely expected that the NLRB would now consist of three pro-management members – Kaplan, Emanuel and Chairman Phillip Miscimarra. In his first decision as a member of the NLRB, however, Kaplan voted with Mark Pierce, and contrary to Miscimarra, when denying an employer’s request to stay an upcoming union election. In PCC Structurals, Inc.,Case 19-RC-202188 (Sept. 22, 2017), an unpublished decision, the employer sought to stay an election scheduled for September 22, 2017, or in the alternative, to impound the ballots. The Board denied each of the employer’s requests by a 2-1 vote. Miscimarra dissented on the basis of his disagreement with the Board’s “quickie election” rule, which was implemented in April 2016. When ruling for the Union, Kaplan “expresse[d] no view with respect to whether he agrees or disagrees with the revisions made by the [Quickie] Election Rule…” This is just the first decision in which Kaplan has participated and his position on these and other issues will be clarified as additional decisions are released. We will keep you posted on future decisions.

On August 8, 2017, the United States District Court for the District of Connecticut held in Noffsinger v. SSC Niantic Operating Co., LLC d/b/a Bride Brook Health & Rehab Ctr. that federal law does not preempt the Connecticut Palliative Use of Marijuana Act (PUMA). PUMA prohibits employers from firing or refusing to hire qualified applicants or employees who are legally prescribed medical marijuana, even following a positive drug test. This case of federal first impression may have wide-ranging implications for employers that conduct drug testing in states that have legalized medical marijuana and have laws that protect medical marijuana users from adverse employment decisions based solely on their use of medical marijuana. Plaintiff Katelin Noffsinger was prescribed a daily dose of Marinol (capsulated synthetic marijuana) to treat symptoms arising from post-traumatic stress disorder, which she took only at night. Bride Brook, a nursing home, extended an offer of employment to Noffsinger, contingent upon passage of a drug test. Noffsinger disclosed her Marinol prescription to Bride Brook, and, as anticipated, tested positive for marijuana metabolites. Thereafter, Bride Brook rescinded her job offer. Noffsinger filed a lawsuit against Bride Brook alleging a violation of PUMA’s anti-discrimination provision. Bride Brook moved to dismiss, and argued that PUMA is preempted by the Americans with Disabilities Act (ADA), the Controlled Substances Act (CSA), and the Food, Drug and Cosmetic Act (FDCA) based on the theory of “obstacle preemption,” whereby state laws are preempted if they “stand as an obstacle to the objectives of Congress.” The court denied Bride Brook’s motion, and held that PUMA did not create an “actual conflict” with any of the three federal statutes. First, the CSA did not preempt PUMA because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. Second, the ADA did not preempt PUMA because, while the ADA allows employers to prohibit the illegal use of drugs in the workplace, PUMA does not authorize individuals to use marijuana while at work, and the ADA does not address use of drugs outside of the workplace. Finally, the FDCA did not preempt PUMA because the FDCA does not regulate employment, but PUMA does. The Noffsinger decision creates further complications for employers that conduct drug testing for marijuana, particularly in states that have enacted laws that protect medical marijuana patients from adverse employment actions based solely on their use of medical marijuana. While the Noffsinger decision is not binding on other courts, courts in other jurisdictions with similar medical marijuana statutes might follow its lead. Therefore, employers may wish to reevaluate policies that either automatically deny employment to, or require termination of, an employee following a positive drug test resulting from the employee’s use of prescribed medical marijuana.

The Missouri legislature recently sent a new bill designed to severely limit the use of project labor agreements to Governor Greitens’ desk. Known as Missouri Senate Bill 182 (“S.B. 182”), its stated purpose is to ensure a more competitive and fair bidding process for public works projects. A project labor agreement is a collective bargaining agreement that requires public construction projects (e.g., improving infrastructure, or building schools, libraries, or police stations) to be performed only by contractors that agree to sign a labor union agreement for that project. While Missouri’s current system allows both union and non-union contractors to bid on a project, in practice non-union contractors are effectively compelled to engage union labor and abide by terms of a collective bargaining agreement. S.B. 182 passed the House 104-52 on April 27, 2017, and would prohibit the use of project labor agreements on any project where the state of Missouri or its subdivisions is funding the majority of the project. However, projects that are funded by 50 percent or less of state funds may still be subject to project labor agreements on a project-by-project basis if a certain process is followed. If signed into law by Governor Greitens, Missouri will join 23 other states that have already enacted laws to either limit or ban project labor agreements. We will keep you posted on the bill’s progress.