Hunton Employment & Labor Perspectives

An Administrative Law Judge (ALJ) of the National Labor Relations Board (Board) recently issued a decision which hints that changes might be on the horizon for how the National Labor Relations Act (Act) is applied towards educational institutions with religious affiliations. Saint Leo University Inc., 2023 WL 2212789 (2023). The Board’s assertion of jurisdiction over religious institutions reflects a balancing between the First Amendment of the United States Constitution and the rights of an institution’s employees under the Act. University of Great Falls v. NLRB, 278 F.3d 1335, 1343-44 (D.C. Cir. 2002). The test the Board currently applies in determining whether it has jurisdiction over an employer with religious affiliations is found in Bethany College, 369 NLRB No. 98 (2020). General Counsel Abruzzo indicated her interest in replacing the Bethany College standard with a new standard in her Mandatory Submissions to Advice. NLRB Gen. Counsel. Mem. 21-04, at 5 (Aug 12, 2021).

In the employment law arena, plaintiffs frequently bring in federal court both federal and state law claims arising from the same nucleus of fact.  Plaintiffs can do so thanks to 28 U.S.C. § 1367, which permits federal courts to exercise supplemental jurisdiction over state claims arising from the “same case or controversy” as the federal claims.  28 U.S.C. § 1367(a).  If the federal court dismisses the federal claims, often the court will decline to retain jurisdiction over just the state law claims and, consequently, dismisses those, too.  See 28 U.S.C. § 1367(c)(3).  If that happens, how long does the plaintiff have to re-file in state court the state law claims, which have not been adjudicated on the merits?  The answer lies in 28 U.S.C. § 1367(d), which reads in relevant part: