Hunton Employment & Labor Perspectives

Several prominent business groups filed an amicus brief in the Supreme Court of the United States on July 24 urging the Court to reform its standard on agency deference and highlighting the unpredictability caused by the National Labor Relations Board’s (“NLRB”) current application of the lenient standard.

The Coalition for a Democratic Workplace (“CDW”), which represents hundreds of employers nationwide, retained Hunton Andrews Kurth LLP to draft an amicus brief in Loper-Bright Enterprises v. Raimondo.  In Loper-Bright, the Court will consider whether to overrule or clarify its Chevron deference standard, which requires courts to defer to an agency’s interpretations of its governing statute if the agency’s interpretation is reasonable and the statute is ambiguous.

The CDW brief, which was joined by several additional trade groups including the National Retail Federation, Associated Builders and Contractors, and the International Franchise Association, did not take a position on whether the Court should overrule Chevron.  Instead, the brief advocated for reform of the Chevron standard, and provided the Court with several examples of how inconsistent NLRB precedent, established with the protection of Chevron, caused unpredictability in labor relations.  Examples of the NLRB’s expansive interpretation of its own power, delegated by statute through the National Labor Relations Act, include its position on statutory protections for former employees and a broad definition of “concerted activity” under the Act.  The NLRB also has a notorious reputation for flip-flopping in its interpretations of the Act, which causes labor law to change drastically based on the political make-up of the Board.

The brief resulted from a collaboration between Hunton Andrews Kurth’s issues and appeals team, which brought its expertise in agency litigation and appeal matters, and its labor and employment team, which provided specialized knowledge regarding NLRB adjudication and rulemaking practices.  These two Hunton groups regularly assist trade groups like CDW with advocacy matters before state and federal courts and through the agency rulemaking process.