The end of "reverse discrimination"

As expected, the US Supreme Court was unanimous in Ames v. Ohio Dept of Youth Services (06/05/2025) [PDF].

The 6th Circuit held that a straight female had failed to meet her Title VII prima facie burden because she had not shown "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

In reversing, the US Supreme Court said: “The Sixth Circuit has implemented a rule that requires certain Title VII plaintiffs—those who are members of majority groups—to satisfy a heightened evidentiary standard in order to carry their burden under the first step of the McDonnell Douglas framework.  We conclude that Title VII does not impose such a heightened standard on majority group plaintiffs. Therefore, the judgment below is vacated, and the case is remanded for application of the proper prima facie standard.”

The death of Humphrey's Executor

Humphrey’s Executor v. U.S. (Supreme Court 1935) is the main case cited by individuals who dispute the President's authority to remove members of the NLRB and MSPB without cause.

Here's the thing: That case is just plain wrong. (And not because it’s 90 years old.)

It's wrong for three basic reasons.

In 1935 the Supreme Court had already held that the President could remove the heads of administrative agencies without cause.

So what made the Court think Humphrey's case was special?

One: A Multi-Member Board. Humphrey sat on a multi-member board instead of running an agency solo. Big deal, right? Why would the number of people on a board matter for a constitutional question? It doesn't.

Two: The Experience Factor. These appointees had relevant experience and would get even more by serving. My response? Who cares? Since when do experienced people get extra constitutional protection? That's nonsense.

Three: The "Quasi" Magic. This is the big one. The Court said these folks were doing "quasi-judicial" and "quasi-legislative" work—not executive functions. Notice that word "quasi"? It means "It looks like a duck but it ain’t actually a duck."

Sure, they hold hearings that look judicial—but they're not Article III judicial. It's just a smart way for executives to make good decisions.

And yes, they make rules that look legislative—but they're not Article I legislative. It's just how you create consistency and let people know what to expect.

Bottom line: NLRB and MSPB members are doing executive work under Article II, period.

And the Supreme Court stated it this way when they granted a stay in Trump v. Wilcox (05/22/2025): "The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power." Maybe not exclusively, but definitely "considerable."

When Trump v. Wilcox winds it’s way back to the Supreme Court, we'll finally get to watch Humphrey's Executor's funeral.

Amuse yourself. Go read the Humphrey's Executor case [HERE].:

NLRB & MSPB members are out, for now, forever

The Supreme Court has weighed in on the President's termination of a member of the NLRB and a member of the Merit Systems Protection Board. Trump v. Wilcox (05/22/2025) [PDF]

 Let me quote the Court: “The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”  

District courts said this was illegal.

Now the Supreme Court has put a stay on those decisions until the case trickles up through the Court of Appeals.

It's pretty clear to me (this was a 6-to-3decision) that the Supreme Court has already made up its mind, and the President is going to win this one.

And meanwhile, both of those agencies are operating without a quorum.

SCOTUS keeps Wilcox off the NLRB

Trump v. Wilcox (US S Ct 0522/2025) [PDF]: SCOTUS slapped a stay on District Court orders that would have reinstated Gwynne Wilcox as a Member of the NLRB. The stay will remain until the case winds its way through the Court of Appeals.

 A take-away quote: “The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”

 Three Justices dissented—Justices Kagan, Sotomayor, and Jackson.

NLRB’s General Counsel asks and answers “What about Thryv, Inc.?”

Without saying it’s dead, he says it’s dead: “In sum, both the majority and dissent in Thryv agree that foreseeable ‘harms’ or ‘losses’ should be remedied if they ‘result from’ the unfair labor practices or where the ‘causal link’ between the loss and the unfair labor practice is ‘sufficiently clear.’ Thus, at least for purposes of Settlements, Region’s should focus on addressing foreseeable harms that are clearly caused by the unfair labor practice. While this admittedly is the standard advocated by the dissent, it is the only standard reasonably capable of application.”

GC Memo: Seeking Remedial Relief in Settlement Agreements https://apps.nlrb.gov/link/document.aspx/09031d4583ffc1c3

Paul Grossman's 2025 update

Paul Grossman just sent out his 117 page Employment Discrimination Law Update for 2025. If you practice employment law, this is something you must have. It’s thorough, objective, accurate, and easy to read.

The UPDATE is a personal supplement to the book that was coauthored – Lindemann, Grossman and Weirich, Employment Discrimination Law (BNA – Sixth Edition 2020).

In an act of great generosity, Paul sends this out periodically during the year to those who ask for it. Simply send your full contact information to Paul's secretary Cathy Smith-Joo: cathysmithjoo@paulhastings.com.

Paul Grossman is a partner at Paul Hastings, and is based in Los Angeles. He is a management-side employment lawyer and a frequent speaker on employment law.

Surprise 5-4 RICO decision from SCOTUS

An employee bought and used a purportedly THC-free tincture for his pain, but he tested positive for THC on a drug test, so he was fired from his job.

He sued the maker of the tincture under RICO.

Note that RICO won’t apply to a personal injury such as loss of employment.

But the US Supreme Court (5-4) says that a plaintiff may seek treble damages under RICO for “business or property” loss even if the loss resulted from a personal injury. Medical Marijuana, Inc. v. Horn (US Supreme Ct 04/02/2025) [PDF]

Three Justices dissented, saying his personal injury can’t be transformed into a business or property loss.

Justice Thomas would dismiss the writ of certiorari as improvidently granted.

William B. Cowen appointed Acting General Counsel of the NLRB.

Press release, February 03, 2025:

Today, effective immediately, President Donald J. Trump appointed William B. Cowen Acting General Counsel of the National Labor Relations Board. Prior to today’s appointment, Mr. Cowen served as Regional Director in the Agency’s Los Angeles Regional Office (Region 21) since 2016.

“I am truly honored to be asked to serve as Acting General Counsel,” Cowen said. “The men and women of this agency represent the finest in public service and I thank the President for the confidence that he has shown in me by this appointment.”

Mr. Cowen began his NLRB career in 1979 and served in various capacities throughout the Agency at both Headquarters and in the field until he left to enter private practice in 1985. Mr. Cowen was later appointed by President George W. Bush to serve as a Board Member from January 22, 2002 to November 22, 2002. He then served as Executive Assistant (Chief of Staff) to NLRB Chairman Robert J. Battista. From 2006 to 2016, Mr. Cowen served as the Board’s Solicitor. Mr. Cowen holds a B.A. degree in Mathematics from Case Western Reserve University in Cleveland, OH, a Masters of Theological Studies degree from Wesley Theological Seminary, and his J.D. degree from Cleveland-Marshall College of Law - Cleveland State University.

Acting NLRB GC is fired

The President on Saturday fired NLRB Acting General Counsel Jessica Rutter, four days after firing General Counsel Jennifer Abruzzo.

NLRB GC speaks

From the NLB on February 01, 2025:

This provides notice to the public that pursuant to the National Labor Relations Act, 29 CFR 102.178, and applicable case law, the NLRB Office of the General Counsel’s Field Offices will continue their normal operations of processing unfair labor practice cases and representation cases.

Further, under 29 CFR 102.182 during any period when the Board lacks a quorum “all representation cases may continue to be processed and the appropriate certification should be issued by the Regional Director notwithstanding the pendency of a request for review, subject to revision or revocation by the Board pursuant to a request for review filed in accordance with this subpart.”

Finally, under the Board’s 2011 “Order Contingently Delegating Authority to the General Counsel” contained at 76 Federal Register 69768 the General Counsel currently has “full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under section 10(j) or section 10(e) and (f) of the Act, contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and any other court litigation that would otherwise require Board authorization; and to institute and conduct appeals to the Supreme Court by writ of error or on petition for certiorari.” 76 Fed. Reg. 69,768 (2011).

Questions about casehandling matters may be directed to the NLRB’s Field Offices.

President fires NLRB Member and General Counsel

The President has fired NLRB Member Gwynne Wilcox—an unprecedented move that leaves the Board without a quorum and thus unable to act.

The statute says Members can be removed "by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” But many employers have been arguing that these restrictions are unconstitutional restrictions on the President's executive powers. Wilcox has said she will challenge her removal.

The President has also fired NLRB General Counsel Jennifer Abruzzo. He does have that power, according to federal Circuit Court decisions.

There is no word on when—or even whether—the President will provide nominations to fill the three empty Board seats.

SCOTUS: Prove FLSA exemptions using the preponderance-of-the-evidence standard

A unanimous Supreme Court on Wednesday held that FLSA exemptions are proved using the preponderance-of-the-evidence standard, not the clear-and-convincing evidence standard. EMD Sales v. Carrera (US S Ct 01/15/2024) [PDF]

The case involved sales representatives who claimed they were denied overtime payments. The employer argued they were outside salesmen and therefore exempt. The trial court—using the clear and convincing evidence standard—found they were not exempt.

The Supreme Court reversed in a unanimous opinion. Now the case goes back to district court to re-decide the issue.

NLRB's Thryv remedies shot down

Back in 2022 the NLRB announced that it will routinely award additional remedies for employees who are unlawfully terminated. This required employer to compensate employees for any direct or foreseeable pecuniary harms incurred as a result of the unlawful adverse actions against them, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. Thryv, Inc, 372 NLRB. No. 22 (2022) [PDF].

Now the 3rd Circuit says this exceeds the NLRB's authority under the NLRA. Starbucks v. NLRB (3rd Circuit 12/27/2024) [PDF].

The court's reasoning was pretty simple. The NLRA allows the NLRB to award equitable relief. This includes reinstatement and back pay. But the statute does not give the NLRB authority to award legal relief.

As the court put it, "While the Board can certainly award some monetary relief to the employees, that relief cannot exceed what the employer unlawfully withheld."

Starbucks raised other arguments that the court did not reach:

* Nondelegation doctrine—that the Board’s reading of the NLRA would transfer Congress’s legislative power to the agency without an intelligible principle to constrain that delegation.

* Due-process.

* Seventh amendment right to a jury trial.

* Right to adjudication in federal court under Article III.

Employment law pop quiz #20 – Denial of a transfer

Is denial of a transfer an "adverse employment decision"?

Some courts are saying "No."
So no Title VII violation.

A recent example: Bradley v. Ohio County Bd of Ed (West Virginia Ct App 11/12/2024) [PDF].

Bradley alleged that she was denied a transfer for 16 positions, and those positions were filled by individuals under the age of forty with less seniority and experience.

The court held that refusal of a transfer is not an “adverse employment action”—even after Muldrow v. St. Louis, 601 U.S. 346 (2024)—because there has been no disadvantageous change in employment conditions.

Muldrow involved an involuntary transfer to a position with less perks, and the Supreme Court said she did not need to show she suffered SUBSTANTIAL harm.

The West Virginia court is saying Bradley suffered no harm at all.

I think that decision is wrong. Bradley has indeed suffered harm because of her age. Younger employees have more mobility, the ability to change locations, change supervisors, change co-workers. Bradley is denied all that due to her age. She is stuck in one spot.

Would the result be the same if members of one race were stuck this way?
I think not.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

Get all the Pop Quizzes (20 so far) in one PDF – email me: RossRunkel@gmail.com.

Judge stops FLSA rule—nationwide

Nationwide: FLSA minimum salary threshold increases for the white-collar overtime exemption held invalid.

A federal judge in Texas has invalidated—on a nationwide basis—three recent changes in the Department of Labor's regulations governing the salary threshold for the FLSA's “white collar” overtime exemption:

(1) The July 1, 2024 increase from $684 per week to $844 per week.

(2) The increase to $1,128 per week that was scheduled for January 2025.

(3) Automatic increases every three years.

The case is Texas v. US Department of Labor (ED Texas 11/15/2024) [PDF].

Even if DOL appeals to the 5th Circuit, I expect the Trump administration will not follow through on an appeal.