For employers, in-house labor counsel, and management-side litigators tracking National Labor Relations Board policy, federal appeals courts are increasingly willing to reject board interpretations that once received deference. That shift changes how organizations should weigh the durability of NLRB precedent when building workplace policies.
In a recent article, "NLRB Policy Woes Deepen As 2nd Circ. Rejects Uniform Test," published by Law360 Employment Authority, the publication examined the Second Circuit’s decision to reject the board’s dress code test under the Supreme Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo. Steven M. Swirsky, a Member of the Firm of Epstein Becker Green and counsel to employers on labor relations strategy and proceedings before the National Labor Relations Board, discussed what the ruling means for the board’s broader body of policy.
The article traced how the Second Circuit joined the Fourth, Fifth, Sixth, Tenth, and D.C. Circuits in holding that the board's interpretations of ambiguous provisions in the National Labor Relations Act deserve no deference, applying that standard to reject the board's 2022 Tesla dress code presumption. Swirsky pointed out that the National Labor Relations Act leaves many operative terms undefined, leaving decades of board doctrine, both union-friendly and employer-friendly, exposed to challenge.
“The term ‘employee’ is not defined in the act, supervisory status … has a definition but a lot of things get shoehorned into that,” Swirsky said. “Joint employer is not contemplated by the act. I think if you look at where the most controversial cases have been … none of that is in the act, none of it is in the rules and regulations.”
Get in Touch
To discuss how this trend of reduced deference to NLRB policy may affect your organization's workplace rules and litigation strategy, contact Steven Swirsky at sswirsky@ebglaw.com.
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