In today’s news and commentary, the 5th Circuit upholds injunctions that paused Board proceedings against three Texas employers, holding that the employers are likely to succeed in their arguments that the NLRB’s structure is unconstitutional; and Illinois lawmakers direct the state’s department of labor to counteract federal changes to health and safety and wage and hour laws.
In an opinion published yesterday, the 5th Circuit upheld three preliminary injunctions issued by Texas district courts based on employer arguments that the NLRB’s structure is unconstitutional. The opinion appears to say that removal protections for NLRB administrative law judges (ALJ’s) are unconstitutional, that removal protections for Board Members are “likely” unconstitutional, and that ULP proceedings can be enjoined by federal courts where there is a constitutional challenge to the NLRB’s structure.
In the district court cases, which the 5th Circuit consolidated for review, three employer-plaintiffs — SpaceX, an energy company, and a social services website — argued the NLRB’s structure is unconstitutional because ALJ’s and Board Members are insulated from presidential removal. In all three cases, courts issued injunctions that paused Board proceedings against the employers. The NLRB appealed those injunctions to the 5th Circuit, arguing the courts did not have jurisdiction to issue the injunctions, and that the injunctions were improperly issued because the employers were unlikely to...
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