Punching In: NLRB Backs Off Potent Tool, Overtime’s Ill Effects

Monday morning musings for workplace watchers.

SCOTUS Pushes NLRB Off 10(j)|Is Overtime Killing You?

Robert Iafolla: The National Labor Relations Board has grown reluctant to seek immediate court orders to halt alleged labor law violations, once a potent weapon in the agency’s limited arsenal.

The NLRB has authorized regional directors to file injunction petitions just four times so far in 2024, a precipitous drop compared to recent years—and on pace for a lower annual total than the lowest during the Trump administration. The agency has even dropped a few injunction bids.

General Counsel Jennifer Abruzzo pledged to reinvigorate the use of 10(j) injunctions, named after the section of the National Labor Relations Act that empowers the NLRB to go to court for injunctions against employers as the agency processes the underlying unfair labor practice cases.

And she succeeded. The NLRB authorized 10(j) petitions at the rate of 17 per year from when Abruzzo became GC in July 2021 to the start of this year.

Although that didn’t match the NLRB’s frequency during the Obama administration—including 58 petitions in 2012 alone—it topped the board’s rate of 10.4 per year when Trump-appointed Peter Robb was general counsel.

The agency’s top 10(j) target during the Biden administration, Starbucks Corp., deployed an unusual strategy to defend against injunction bids by aggressively seeking discovery.

Beyond bogging down cases, the company brought the 10(j) process before a conservative Supreme Court majority skeptical of agency power.

The high court agreed to consider the issue in January, granting Starbucks’ request review a US Court of Appeals for the Sixth Circuit’s ruling upholding an injunction against the company. That’s when the NLRB’s approval of petitions slowed.

“The Supreme Court doesn’t take cases just to give an ‘attaboy’ to circuit courts,” said Jerry Hunter, an attorney at Bryan Cave Leighton Paisner LLP and former NLRB GC. “The board, reading the tea leaves, had to realize there was a credible chance the Sixth Circuit would be reversed.”

The conservative justices ruled against the NLRB in June, holding that courts should treat the agency’s 10(j) petitions like any other party’s injunction request. That essentially institutionalized Starbucks’ aggressive discovery strategy, providing opportunities for employers to obtain information that they wouldn’t in administrative proceedings.

The chance for discovery raises the possibility that workers who’ve cooperated with NLRB investigations—and were assured their identities would be protected unless and until they give testimony in an administrative trial—could be exposed, said Mark Gaston Pearce, a former NLRB chair.

Regional directors must be more careful about if and when they initiate 10(j) cases because of that, lest workers become reluctant to speak out, said Pearce, a visiting professor at Georgetown University.

The NLRB didn’t respond to requests for comment.

Although the numbers have been low in 2024, Abruzzo said in a July memo that her intention continues to be “to aggressively seek Section 10(j) injunctions.”

Rebecca Rainey: Working overtime could be bad for your health, a new Government Accountability Office study warns.

People who work 55 hours or more a week were likely to see a modest increase in the “risk of stroke and ischemic heart disease (coronary heart disease)” compared to those working a normal 40 hour week, according to the research.

The study reviewed trends for workers 25 years or older collected by the Bureau of Labor Statistics and the Census Bureau from 2003 through 2023.

Over the past two decades, people in the US have averaged a 38-to-39 hour workweek, the data show, just under the threshold for overtime pay that kicks in for hours worked above 40 in a week.

It also uncovered interesting distinctions among those people with long work hours.

While White males with at least a bachelors degree were most likely to work long shifts, the data found, workers who have multiple jobs in addition to working long hours, were more likely to be female, Black or Hispanic, and earn middle or low wages.

The data could help inform the impacts of the Biden administration’s efforts to expand overtime pay eligibility to 4 million new workers. Proponents of the US Labor Department’s 2024 overtime rule say it will in part lead to some employees working fewer hours, because employers won’t want to pay overtime for that work.

“Due to the increase in marginal cost for overtime hours for newly overtime-eligible workers, employers could demand fewer hours from some of the workers affected by this rulemaking,” the agency said in its cost-benefit analysis of the rule. “If these workers’ pay remains the same, they could benefit from increased personal time and improved work-life balance.”

However, the GAO notes that more research is needed on the relationships between long work hours and health, including “whether there is a causal relationship between them,” and how risks differ based on the type of work.

We’re punching out. Daily Labor Report subscribers please check in for updates during the week, and feel free to reach out to us.