What a Year in Labor: Top 10 Labor Cases and Developments You Should Know from 2024

Key Takeaways:

• During 2024, the Biden Board continued to implement its extremely pro-union, pro-employee agenda.
• Employers enjoyed some successes with respect to judicial review of Board pronouncements; however, courts also upheld, in whole or in part, a number of controversial Board decisions.
• The change in presidential administrations very well may likely result in the reversal of much of what we have seen over the past few years; however, such reversals may not take place immediately.

In 2024, labor law continued to generally favor employees under the Biden National Labor Relations Board (the Board). Notable developments included establishment of an employee right to wear clothes espousing political speech under certain circumstances, limitation of employers’ ability to demand that employees behave “respectfully,” and a requirement that employers bargain with employees over the cessation of minor workplace benefits like holiday parties. This article summarizes these cases and others from 2024 and primes employers for the likely direction of labor law in 2025 and beyond.

I. What a Year It Was – Notable 2024 Decisions and Developments:

1. Vesta VFO, LLC, 373 NLRB No. 10 (2024): A wealth management firm discharged two non-union investment analysts who requested that the firm review their pay and increase their salaries. On Jan. 10, 2024, the Board upheld an administrative law judge’s ruling that the request for salary review and increase was concerted activity, and that this concerted activity was a factor in the firm’s decision to discharge the analysts. In so doing, the Board considered the proximity of the discharges to the request, the employer’s inconsistent explanations for the discharges and the fact that the analysts discussed their salaries with each other. The Board ordered the employer to reinstate the analysts and awarded them back pay, other lost benefits, and compensation for any other adverse consequences they suffered as a result of the wrongful discharge. This case serves as a great reminder that even if your workplace is “non-union,” the National Labor Relations Act’s (NLRA or Act) protections still apply to non-union employees.
2. Home Depot USA, Inc., 373 NLRB No. 25 (2024): A customer-facing Home Depot employee wrote “BLM,” meaning “Black Lives Matter,” on his company-issued orange apron. Home Depot ordered the employee to remove the marking, claiming that its dress code prohibited promoting or displaying “religious beliefs, causes, or political messages unrelated to workplace matters.” The employee refused to remove the marking and Home Depot barred him from working with the marking on his apron, so the employee resigned. On Feb. 21, 2024, the Board deemed the resignation a constructive discharge.
   
   The Board further held that the employee’s display of the BLM insignia was protected concerted activity because multiple employees, including the constructively discharged employee, had complained about purported racial discrimination, while wearing aprons emblazoned with “BLM.” In so doing, the Board reasoned that “an individual employee’s action is ‘concerted’ within the meaning of Section 7 of the Act if it is a ‘logical outgrowth’ of employees’ prior or ongoing protected concerted activity.” Because the constructively discharged employee testified that the BLM insignia signaled support for black employees, the Board held that this “linked” the insignia to prior protected concerted racial discrimination complaints.
   
   Notably, Home Depot could not point to “special circumstances” entitling it to maintain a dress code that restricted this protected concerted activity, thus the Board concluded that enforcing its dress code to ban the BLM insignia was illegal. Further, the Board found the employee’s constructive discharge illegal and ordered Home Depot to reinstate the employee with back pay and compensation for any other harm suffered as a result of the discharge.
3. Thryv, Inc., 372 NLRB No. 22 (2022), vacated in part, 102 F.4th 727 (5th Cir. 2024); Nos. 23-1953/23-2241, 2024 BL 472639 (3d Cir. Dec. 27, 2024): In 2022, the Board in Thryv expanded the scope of remedies available to employees subject to an unfair labor practice (ULP) based on its reinterpretation of the concept of “making employees whole.” The expanded remedies included all direct or foreseeable harms resulting from the ULP, including but not limited to credit card debt incurred and out-of-pocket medical costs borne by an employee who was wrongfully terminated.
   
   On May 24, 2024, the Fifth Circuit vacated part of the Board’s order, finding that the employer did not commit the underlying ULP. The court deemed the Board’s expanded remedies “a novel, consequential-damages-like labor law remedy” but did not vacate that portion of its order. However, on Dec. 27, 2024, the Third Circuit also addressed Thryv, holding that the remedies portion of the Board’s order “exceed[ed] [the Board’s] authority under the NLRA.” The Third Circuit vacated the monetary damages portion of the order left untouched by the Fifth Circuit, instructing the Board that “[c]ompensatory damages are intended to redress the concrete loss that the [employee] has suffered by reason of the [employer]’s wrongful conduct,” and that “[w]hile the Board can certainly award some monetary relief to the employees, that relief cannot exceed what the employer unlawfully withheld.” Thus, a circuit split has developed on the issue of broad “make-whole” remedies, which we will continue to monitor going forward.
4. Starbucks Corp., No. 28-CA-289622, 2024 BL 196442 (ALJ June 7, 2024): A union claimed the Starbucks employee handbook, Store Operations Manual, arbitration agreements and other work rules requiring employees to behave “respectfully” unlawfully impaired protected activity. The union objected in particular to an employee handbook requirement that employees “[r]efrain from any conduct that could be construed as discrimination, harassment, bullying or retaliation.” On June 7, 2024, an administrative law judge (ALJ) applied the Biden Board’s decision in Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023), to find this and similar rules overly broad and infringing on employees’ Section 7 rights. Under Stericycle, a rule is presumptively unlawful if an employee could reasonably interpret it to restrict protected activity. Because terms like “harassment,” “unwelcome” and “offensive” were not defined in Starbucks’ rules and “[a]n employee who has strong personal antiunion sentiment may very well view attempts to organize as offensive to their views,” the ALJ deemed them unlawful.
5. Starbucks Corp. v. McKinney, 602 U.S. 339 (2024): On June 13, 2024, the Supreme Court, in vacating a Board decision to grant a Section 10(j) injunction, rejected the Board’s argument that a more lenient preliminary injunction standard should apply, as espoused by some circuit courts. To obtain a preliminary injunction under Section 10(j), the Board’s general counsel must establish (1) likelihood of success on the merits, (2) likelihood of irreparable harm to employees absent preliminary relief, (3) balance of equities favoring an injunction and (4) that an injunction is in the public interest. The Board argued that a more apt standard would be the general counsel’s showing of “reasonable cause to believe that unfair labor practices have occurred.”
   
   The Court rejected this argument, focusing on the “likelihood of success” element to reason that a “reasonable-cause standard goes far beyond simply fine tuning the traditional criteria to the § 10(j) context—it substantively lowers the bar for securing a preliminary injunction by requiring courts to yield to the Board’s preliminary view of the facts, law, and equities.” It was similarly unmoved by the Board’s argument that the lesser standard was appropriate “because the Board’s final decisions are reviewed deferentially by a court of appeal,” because “[d]eference to what is nothing more than an agency’s convenient litigating position is entirely inappropriate.” Thanks to McKinney, the high standard for obtaining Section 10(j) injunctions – applicable generally to injunctions under federal law – remains intact nationwide.
6. The Fair Choice – Employee Voice Rule, 29 CFR Part 103: On Aug. 1, 2024, the Board enacted a final rule, effective Sept. 30, 2024, rescinding and replacing the amendments it made in April 2020 to its rules and regulations governing the filing and processing of petitions for a Board-conducted representation election while ULP charges are pending and following an employer’s voluntary recognition of a union. This revived the Board’s long-standing pre-2020 policy of declining to process election petitions where a party objected because of a pending ULP charge. In contrast, under the short-lived 2020 Election Protection Rule, regional directors were required to conduct an election notwithstanding a pending ULP charge and, with some exceptions, immediately count the ballots. With the reinstatement of the Fair Choice – Employee Voice rule, regional directors may decline to process an election if ULP charges are pending. With this rule in place, unions may tactically file (sometimes dubious) ULP charges (i.e., “Blocking Charges”) to delay an election they feel has momentum in the employer’s favor.
   
   With its Aug. 1, 2024 final rule, the Board also enshrined the Voluntary Recognition Bar. Under the 2020 iteration of the rule, an employer could voluntarily recognize a union without an election and negotiate an initial collective bargaining agreement if it gave notice of the recognition to the Board’s regional office and the employer’s employees, at which point the employees could file a decertification petition within 45 days after receiving notice from the employer. The 2024 Voluntary Recognition Bar eliminated the notice requirement and the employees’ right to file a decertification petition within 45 days.
   
   It remains to be seen whether the Voluntary Recognition Bar, which is not based in statute, will receive the deference previously afforded to administrative agencies under the Supreme Court’s now-rejected Chevron doctrine. In fact, at the time the final rule was passed, then-Board Member and now-Board Chair Marvin Kaplan dissented from the new rule, expressing doubt as to the Board’s authority to impede employees’ statutory rights to participate in or refrain from union representation.
7. McLaren Macomb, 372 NLRB No. 58 (2023), aff’d, Nos. 23-1335/1403, 2024 BL 329592 (6th Cir. Sept. 19, 2024) (unpublished per curiam): On Sept. 19, 2024, the Sixth U.S. Circuit Court of Appeals enforced the Board’s landmark McLaren Macomb decision holding general confidentiality and non-disparagement provisions commonly included in severance agreements could violate employees’ Section 7 rights. While the Sixth Circuit did not comment on this particular holding, the Board’s rule remains in effect and may in fact have been solidified.
   
   Under McLaren Macomb, severance agreement confidentiality provisions must be narrowly tailored and limited to restricting the dissemination of proprietary or trade secret information for a fixed period of time, and the restriction must be based on legitimate business reasons. Non-disparagement provisions must also be limited to effectively mirror the legal definition of defamation so as to bar only maliciously untrue statements. Of course, these protections only apply to “employees” under the Act and do not bar these provisions from severance agreements for supervisors or executives.
8. Starbucks Corp., 373 NLRB No. 123 (2024): On Oct. 2, 2024, the Board held that Starbucks committed a ULP via comments its CEO made in a 2022 companywide virtual meeting. In response to an employee’s attempt to explain the benefits of unionization, CEO Howard Schultz responded: “[I]f you’re not happy at Starbucks, you can work for another company.” Schultz also referred to the employee as “angry” and commented that the employee had only two years with the company. The Board held that Schultz’s comments were implied threats to discharge that employee and others who engaged in similar conduct. In so doing, it found that Schultz’s “generic assurances against retaliation at the opening of the meeting hardly lessened the objective tendency of his invitation to quit” and that his status as Starbucks’ “highest official” and a “legendary leader” tended to “exacerbate the coercive nature of [his] statement.”
9. Amazon.com Services LLC, 373 NLRB No. 136 (2024): On Nov. 12, 2024, the Board granted then-General Counsel Jennifer A. Abruzzo’s long-held wish of ending a common employer practice of holding mandatory employee “captive audience” meetings, overturning more than 75 years of precedent. Abruzzo issued a memorandum in 2022 calling for the end of captive audience meetings as unduly coercive. While Board agents frequently cited this memorandum in the ensuing years to argue that employers violated the Act by holding captive audience meetings, captive audience meetings in fact remained lawful until the Board reversed its 1948 Babcock & Wilcox decision on Nov. 12.
   
   As justification for banning captive audience meetings, the Board deemed Babcock & Wilcox not sufficiently supported, noting in particular that the legislative history of the NLRA made almost no mention of such meetings. However, given the near doctrinal status of the captive audience meeting rule and lack of substantial reasons for reversing it, this decision appears to be motivated by policy goals far more than any inherent issue with Babcock & Wilcox. Notably, the Board cited employers’ long-standing reliance on the rule to depart from its usual practice of applying holdings retroactively, meaning that only captive audience meetings held after the Amazon decision was published could violate the Act.
10. Starbucks Corp., No. CA-310274, 2024 BL 440055 (ALJ Dec. 3, 2024): Starbucks hosted catered ice-skating parties at the Seattle Kraken NHL team training facility for its Seattle-area employees in February 2023 but excluded unionized employees from the events. Starbucks had included unionized employees in similar events prior to the COVID-19 pandemic, and the company did not mention the employees’ exclusion from the 2023 event to, or bargain over it with, their union.
    
    The ALJ held that excluding the unionized employees was a ULP since it interfered with, restrained or coerced employees in the exercise of their Section 7 rights; discriminated against them; and discouraged their membership in the union. The ALJ reasoned that “[w]hen an employer deliberately withholds an existing benefit from unionized employees, the Board has held such conduct to be ‘inherently destructive’ of [employee] rights … even absent any discriminatory motive.” Essentially, the ALJ found that prior inclusion of the unionized employees created a binding past practice, the elimination of which Starbucks would need to bargain over.
    
    The ALJ issued “the broadest order possible,” requiring Starbucks to (1) cease and desist from excluding unionized employees from parties and similar benefits; (2) compensate all unionized employees excluded from the parties the cash value of the benefits, approximately $40 each; (3) hold 45-minute training sessions for managers on employee collective bargaining rights; (4) post a notice acknowledging its violation for 365 consecutive days everywhere it customarily posts notices to employees throughout the greater Seattle area; and (5) send a copy of the notice to all employees in the greater Seattle area.

II. What a Year It Will Be – Developments to Look For in 2025 and Beyond:

Ordinarily, the inauguration of a new president, even one from the non-incumbent party, would not signal an immediate shift in the direction of the Board. That is because the five Board members are appointed by the president, with the consent of the Senate, to staggered five-year terms, and under current law cannot be removed by the president except for “neglect of duty or malfeasance in office.” While lawsuits are challenging the constitutionality of this arrangement, it means that the president has historically been unable to control the Board early in his first term, which limits his ability to steer Board policy.

President Donald Trump is presented with a unique situation, however. As of his inauguration on Jan. 20, two Board seats sit vacant and one of the three current members is his former appointee, Marvin Kaplan. Since Republicans won control of the Senate, we anticipate Trump will garner the necessary votes and quickly take control of the Board by filling the two vacancies. He has already appointed Kaplan chairman of the Board.

The Board’s general counsel, who is responsible for investigating and prosecuting ULP charges and conducting representation elections, is appointed by the president and confirmed by the Senate to a four-year term. President Biden became the first to fire a general counsel before the end of his or her term when he terminated then-General Counsel Peter Robb on Inauguration Day in 2021. Trump removed General Counsel Abruzzo on Jan. 27. Along with the general counsel, Trump dismissed Gwynne Wilcox, one of the two Board members belonging to the Democratic Party. Wilcox has vowed to challenge her removal.

Though we fully expect the pendulum to swing, and the Board will slowly course-correct, employers should continue to exercise caution. The above-discussed decisions and other employee-friendly rules from the Biden Board will remain Board policy unless and until a Republican-controlled Board is seated, is presented cases with the requisite facts and decides to reverse them.

Finally, employers should remember that the best cure for labor woes is prevention, and they should consult with legal counsel before taking any actions that the Board might find infringe on employee rights under the NLRA. In other words, while an employer can be cautiously optimistic regarding what the Board is going to do, it may not want to become the test case with respect to such Board action.

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