Monday, September 23, 2013
Last week, the Securities and Exchange Commission (SEC) released a rule requiring companies to disclose the CEO-to-worker pay ratio. Despite objections by many corporations, the rule covers all employees including seasonal, international, and part-time workers. The SEC provides companies the option of using the entire workforce or a representative sample in the calculation.
There will now be a 60-day comment period. The SEC voted for the rule 3-2, with the two Republican Commissioners who voted against the proposal calling it a special interest provision and proclaiming “shame on the SEC.”
Proponents of the rule argue that it will give shareholders and other stakeholders a clear line of sight into human capital management and worker pay. For instance, CalPERS, the California State Pension Plan, has issued a release, welcoming the rule as a valuable tool which will “help shareholders to keep management accountable” and “shed light on an element of pay which is currently shrouded from view.” John Liu, the NYC Comptroller, stated that the rule would allow “shareowners to make informed decisions about compensation and may rein in excessive corporate practices.”
From my point of view, and quoting Justice Brandeis, "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."
On behalf of the Hofstra Labor & Employment Law Journal, Jamie Haar (Managing Editor of Articles) invites interested law professors and practitioners to submit original articles for publication in the Journal’s symposium issue.
The Journal will be devoting its Spring 2014 issue to the topics that will be discussed at this year’s Symposium. The Symposium will be dedicated to a practice-oriented and scholarly discussion on employer-regulated healthcare and the implications of employee leave and disability accommodations in the labor and employment law context. The Jounral is seeking articles on the impacts and implications of the Affordable Care Act and the recent amendments to the Americans with Disabilities Act on labor and employment law.
Submissions for article proposals or completed articles must be made by October 11th. Articles that need to be written should be completed by January 8, 2013. Articles may not exceed fifty pages and must be a minimum of fifteen pages. Please send all submissions to Jamie Haar, Managing Editor of Articles, via email to firstname.lastname@example.org.
Friday, September 20, 2013
On September 12, 2013, the Solicitor of Labor, M. Patricia Smith, issued a letter to the American Bar Association responding to the ABA’s request for confirmation that law students interning at for-profit law firms and working on pro bono matters need not be paid. The Solicitor concluded that such internship programs would fall under the FLSA’s narrow “intern exclusion.” In so finding, she noted:
Where the program is designed to provide a law student with professional practice in the furtherance of his or her education and the experience is academically oriented for the benefit of the student, the student may be considered a trainee and not an employee. Accordingly, where a law student works only on pro bono matters that do not involve potential fee-generating activities, and does not participate in a law firm’s billable work or free up staff resources for billable work that would otherwise be utilized for pro bono work, the firm will not derive any immediate advantage from the student’s activities, although it may derive intangible, long-term benefits such as general reputational benefits associated with pro bono activities.
While the need to have our students gain practical experience while in law school is of growing importance, the DOL’s position too quickly discounts the benefits accruing to these law firms from this source of unpaid labor. The ABA’s own Model Rule of Professional Conduct 6.1 makes clear that “every lawyer has a professional responsibility to provide legal services to those unable to pay” and “should aspire to render at least (50) hours of pro bono publico legal services per year.” It would seem that these firms are discharging their ethical obligation under Rule 6.1 by using these unpaid interns. Further, unless the firm was providing more than 50 hours of pro bono services prior to the internship, the pressence of the unpaid intern doing pro bono work is always freeing up staff resources for billable work. The Solicitor never explains why that is not “an immediate advantage” from the intern’s activities which would make the unpaid internship unlawful. Nor is the more basic question addressed: Is paying a law student $7.25 per hour too much to ask?
Washburn University School of Law
Thursday, September 19, 2013
Some of you may recall that we previously blogged on a case from Virginia in August of last year concerning whether, in a public sector First Amendment case involving political activities, liking someone or something on Facebook counted as protected First Amendment speech. I said it most certainly did in the ABA Journal at the time, even though the district judge said it certainly did not.
Yesterday, the Fourth Circuti made the world right again by finding that liking a candidate's campaign page on Facebook was in fact protected First Amendment speech.
On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Friend of the blog, Bill Herbert, has written on these First Amendment issues involving social networking by public employees in: Can’t Escape from the Memory: Social Media and Public Sector Labor Law. The article has now been published in North Kentucky Law Review as part of the Law + Informatics Symposium on Labor and Employment Issues. A shout out to Jon Garon, Director of the Law + Informatics Institute at NKU for organizing this very worthwhile event.
Wednesday, September 18, 2013
In spite of some initial doubts about its viability, Richard Griffin's nomination as NLRB General Counsel is looking up. Today, it advanced out of the Senate Labor Committee on a 13-9 vote (only one Republican voted "yes"). But even Sen. Alexander, who voted "no," stated that he had "no doubt" that Griffin's will be confirmed. This seems to indicate that Republicans have no plans to filibuster or otherwise block the nomination. Apparently, there's no timetable on bringing his nomination for a full vote in the Senate.
Hat Tip: Patrick Kavanagh
The Employee Benefits Security Administration (EBSA) released today guidance (Technical Release 2013–04) defining the meaning of the terms “spouse” and “marriage” under ERISA in light of the U.S. Supreme Court's decision in June in U.S. v. Windsor.
Here is the pertinent text from the Technical Release:
In general, where the Secretary of Labor has authority to issue regulations, rulings, opinions, and exemptions in title I of ERISA and the Internal Revenue Code, as well as in the Department's regulations at chapter XXV of Title 29 of the Code of Federal Regulations, the term 'spouse' will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term 'marriage' will be read to include a same-sex marriage that is legally recognized as a marriage under any state law....
The terms 'spouse' and 'marriage,' however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law.
DOL Secretary Thomas Perez suggests that the DOL plans to issue additional guidance in the near future.
Orly Lobel (San Diego) is about to release (on Sept. 30, 2013) her new book through Yale University Press: TALENT WANTS TO BE FREE: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Amazon link where to find book).From the press release:In today’s fiercely competitive business environment, the “War for Talent” is one of the most significant organizational challenges of the decade. The term, coined by McKinsey & Company in 1997, describes an increasingly competitive landscape for recruiting and retaining talented employees in our innovation-driven economy. Today, the talent wars have become characterized by a singular factor: the control of human capital, or, people and the knowledge they carry. The belief is that if an organization can control these assets – that is, if Google, for example, can prevent its employees from defecting to Facebook, taking critical skills knowledge with them – it will acquire an advantage and become a top player in the industry.But in her new book, TALENT WANTS TO BE FREE: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Yale University Press; hardcover; September 24, 2013), University of San Diego Law Professor Orly Lobel argues that we’ve got the logic all wrong. Far from promoting innovation, too much control of talent – through tactics such as harsh non-compete agreements and strict protection of trade secrets, patents, and copyright – backfires and ultimately stifles the very innovation that organizations so desperately seek. Drawing on original research into motivating employee creativity, analysis of recent litigation, and empirical data from economics, psychology, and network science, Lobel explores how the ways in which we fight over talent can either enhance or inhibit the innovative spirit of an organization. Based on her research, as well as well as her experiences consulting for businesses, inventors and entrepreneurs, Lobel offers leaders a new paradigm for managing people and their ideas in the 21st century.
Looks to be a great and timely read and makes a persuasive argument why restrictive covenants in employment may be squelching worker innovativation America needs to complete in the global economy of the 21st Century. Pick up a copy!
Tuesday, September 17, 2013
The Department of Labor has just announced a significant change for home-health care workers. As many readers know, these workers have thus far been excluded from the FLSA minimum wage and, more importantly, overtime protections. Under the rule, home care workers will no longer be treated as excluded babysitters and others who provide "companionship services" under the FLSA. However, perhaps recognizing the impact of the change, the rule isn't to take effect until January 1, 2015 (that's not a typo).
This change was propsed in 2011 as part of the rulemaking process. The operative part of the rule, described by Steven Greenhouse in a NY Times article:
Under the new rule, any home care aides hired through home care companies or other third-party agencies cannot be exempt from minimum wage and overtime coverage. The exemptions for aides who mainly provide “companionship services” — defined as fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance — are limited to the individual, family or household using the services.
If an aide or companion provides “care” that exceeds 20 percent of the total hours er or she works each week, then the worker is to receive minimum wage and overtime protections.
Monday, September 16, 2013
Feuer on How Should ERISA Plans Handle Powers of Attorney and Court-Appointed Guardians and the Absence of Such Agents for Participants Lacking Capacity?
Albert Feuer has completed the final article of a trilogy discussing the benefit rights of an ERISA plan participant or beneficiary. The third piece is: “How Should ERISA Plans Handle Powers of Attorney and Court-Appointed Guardians and the Absence of Such Agents for Participants Lacking Capacity?,” 54 Tax Mgmt. Memo. 351 (September 9, 2013) .
Albert explains that this newest piece describes some of the ERISA benefit rights that a participant or beneficiary may exercise and (1) argues that ERISA plans may, but need not, disregard state law agents seeking to exercise such rights other than pursuing a benefit claim, (2) makes suggestions for plan powers of attorneys that are likely to be understood by participants and may minimize plan risks, and (3) observes that participant directed plans will be responsible for investment decisions when a participant or beneficiary lacks the capacity to exercise investment rights, but has not appointed a third party agent to act on his or her behalf (this often occurs during the time between the time a participant dies and a beneficiary assumes such responsibilities).
Another welcome addition to the ERISA literature in this important area of the law.
Friday, September 13, 2013
Nicole B. Porter (Toledo) has just posted on SSRN her symposium article (8 FIU L. Rev. 447, 2013) The Blame Game: How the Rhetoric of Choice Blames the Achievement Gap on Women. Here's the abstract:
In 2013, fifty years after the Equal Pay Act guaranteed women equal pay for equal work, almost fifty years since Title VII made discrimination based on sex unlawful, thirty-five years since the Pregnancy Discrimination Act made it unlawful to discriminate against women because of pregnancy, and nineteen years after the Family and Medical Leave Act provided twelve weeks of unpaid leave for some caregiving reasons, there is still a significant achievement gap between men and women in the workplace. Women still make less money, and rise more slowly and not as high in workplace hierar-chies. Why? The common narrative states that because these laws have given women access to formal equality for many years, the fact that women have not achieved equality in the workplace must be blamed on something else. Specifically, the “something else” relied upon by society, the media, employ-ers, and courts, is that women’s own choices are to blame for the achieve-ment gap. The blame game asserts that women’s relative lack of success in the workplace is caused by three interrelated choices: (1) women’s decision to not pursue high-pressure, high-status professions, or jobs that are seen as “men’s work”; (2) women’s unwillingness to negotiate on their own behalf; and (3) women’s decision to devote more time and effort to caregiving and homemaking tasks.
Thursday, September 12, 2013
Laura Rothstein (Louisville) has just posted on SSRN her essay Disability Discrimination Law: The Impact on Legal Education and the Legal Profession. Here's the abstract (the much-longer version of this article will be published by the American University Journal of Gender, Social Policy, and the Law in the spring as the lead article in a symposium issue):
Disability discrimination law affects every lawyer, even those who do not plan to represent clients with disabilities or practice in the area of discrimination law. It also affects every law school and every institution of law, from the courts to federal governmental agencies. It affects gatekeepers to legal practice - the Law School Admission Council and the state bar admission authorities. It applies to areas of concern for the American Bar Association accreditation process and the Association of American Law Schools membership requirements. The fortieth anniversary of the beginning of federal policy prohibiting discrimination on the basis of disability is a good time to reflect on the impact on legal education and the legal profession.
I've had the pleasure of knowing Laura as a disability expert and advocate since the days I was still practicing in Houston and we served together on the Texas Bar Association Disability Committee together. What Laura doesn't say in her essay -- but I will say here -- is that many if not most of the changes she describes in her essay have happened in large part because she pushed hard for them -- not just in her scholarship but in the trenches -- and often despite fierce opposition from entrenched interests or from equally powerful inertia. Laura is a law school professor who has made a profound difference in the lives not only of her students, but in society at large.
Wednesday, September 11, 2013
Thanks to Laura Cooper (Minnesota) for sending along a note about Sweeney v. Zoeller, Ind. Super. Ct., No. 45D01-1305-PL-52, order 9/5/13), in which an Indiana trial court held that the Indiana right-to-work law is unconstitutional under the state constitution because it compels unions to provide services to workers who do not pay for those services. Here's an excerpt from the decision:
The services provided by a union in representing employees include negotiating and enforcing collective bargaining agreements, [which are paid for] by the payment of dues, and are not something required generally of all citizens.... In fact, federal law ensures that nonmembers who obtain the benefits of union representation can be made to pay for them. [The right-to-work law makes it] a criminal offense for a union to receive just compensation for particular services federal law demands it provide to employees.
The NLRB has long held that policies against such discussions tend to chill the right to concerted action by those covered by the law, and several states previously enacted statutes protecting employees who engage in such discussions. Now NJ has one too -- but not a law that explicitly bars such policies or one which protects any discussion of compensation. Rather, the new statute amends the state's Law Against Discrimination to declare it unlawful
for any employer to take reprisals against any employee for requesting from any other employee or former employee of the employer information regarding the job title, occupational category, and rate of compensation, including benefits, of any employee or former employee of the employer, or the gender, race, ethnicity, military status, or national origin of any employee or former employee of the employer, regardless of whether the request was responded to, if the purpose of the request for the information was to assist in investigating the possibility of the occurrence of, or in taking of legal action regarding, potential discriminatory treatment concerning pay, compensation, bonuses, other compensation, or benefits.
That means the statute, read literally, bars reprisal for requesting information related to compensation -- but only if the purpose of the request is investigating or taking legal action against "potential discriminatory treatment concerning pay, compensation, bonuses, other compensation, or benefits." Idle inquiries are thus not protected, but it would be a foolhardy firm that tried to mind-read the intent of a worker seeking such compensation data in order to discharge him for having an unqualifying motive.
But while the statute protects workers who "ask," it doesn't seem to protect workers who "tell." Hence, the "ask but don't tell" title of this post. While there is explicit protection for those seeking certain information, there is no explicit protection for those who provide it. The closest the enactment comes is providing that it should not be construed "to require an employee to disclose such information about himself," which is fine as far as it goes but doesn't address the rights of an employee who chooses to disclose.
This would seem to allow employers to continue to promulgate policies barring an employee from disclosing his or her compensation -- so long as enforcement was taken against the discloser not the disclosee. Whether it would make any sense for a NJ employer to take this stance is another question since the state courts have tended to read LAD protections broadly and the policy might be invoked as proof that a terminated worker was really fired for asking.
Another oddity is that the statute also protects requests for information about the "gender, race ethnicity, military status, or national origin" of other employees. Not included are inquiries related to other protected categories, such as age, religion, disability, and sexual orientation. Does that mean that an employee seeking compensation information in order to, say, prove a case of age discrimination is not protected? Or is she only unprotected to the extent she asks other workers about their ages? Was the legislature trying to safeguard co-worker privacy interests for protected statuses that are not necessarily visisible -- disability, sexual orientation, and religion? If so, why is age not included. which is at least as apparent as most of the listed categories?
There's some legislative history, but none that sheds light on these issues. The law originated as an amendment to the state's Conscientious Employee Protection Act (where it would have protected both discloser and disclosee), was conditionally vetoed by Governor Christie because it more properly belonged in the Law Against Discrimination, and was re-passed by the legislature as an amendment to LAD. Why the current version emerged from the legislative mill is simply not apparent.
Thanks to Ed Hartnett for helping me parse this puzzling law.
The Southeastern Association of Law Schools (SEALS) blog posted a notice that panel and discussion group submissions are now being accepted for the 2014 Annual SEALS Conference in Amelia Island, Florida. Michael Green of Texas A&M Law will be coordinating the labor and employment submissions and you should email him at email@example.com with any proposals that you might have.
Michael asked me also to drop a note to invite anyone who is interested in helping him coordinate the labor and employment submissions to let him know.
Here is the SEALS submissions link.
Please read the submission guidelines carefully before beginning the submission process.
Monday, September 9, 2013
For those of you like me that follow the development of First Amendment law in the public employee space, times have recently been depressing for employee advocates in this post-Garcetti world that we now inhabit in the United States.
Now comes a pro-employee decision (yes from the 9th Circuit) concerning the application of Garcetti to a public university professor's teaching and writing at school. Readers may recall that the Garcetti decision itself punted on the issue of whether the new standard - no First Amendment speech protection for public employees speaking pursuant to their official duties - also applied to the university academic setting where substantial issues of academic freedom also exist (this is less of an issue in the K-12 environment where public school teachers have less discretion in conveying the curriculum and do not generally do scholarship).
In Demers v. Austin (9th Cir. Sept. 4, 2013), the Ninth Circuit considered a case in which "a tenured associate university professor (at Washington State University]. . . alleged that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book titled 'The Ivory Tower of Babel.'” The case focuses primarily on the pamphlet, as not enough evidence was put in the record concering the book.
Judge Fletcher, writing for the unanimous panel, came to four important conclusions:
1. Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. In other words, Garcetti is basically silent on this issue as mentioned above, and the 9th Circuit found that matters of academic freedom play a more prominent role in this context that requires a different legal test. ("We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court [on academic freedom elucidated in Keyishian and other cases].
2. Instead, teaching and writing by university professors comes direclty under the Pickering balancing test, whereby the rights of the public employee to speak on matters of public concern are balanced against the employer's right to run an efficient government service. ("We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering.").
3. So although the university professor here prepared and circulated the pamphlet pursuant to his official duties as a university professor (and thus, would normally have no First Amendment protection under Garcetti), the 9th Circuit concludes that speech was on a matter of public concern (thus satisfying the Connick test) and that there was a chance that the Pickering balancing of interests could come out in favor of the employee. The court therefore remands on this and a few other related issues.
4. In any event, the individual defendants in the case would not be held liable because of the unsettled nature of this area of the law. In short, they enjoy qualified immunity.
This is not the first case finding that there is an exception to Garcetti for teaching and academic writing. The Fourth Circuit came to a similar conclusion in the Adams public university professor case of 2011. Nevertheless, it will be interesting to see if this represents a growing consensus among the lower federal courts on this issue and whether this case will be subject to review en banc or by the Supreme Court. My thought is that although en banc review is certainly possible, there is not yet enough division and consideration of this issue by other circuit courts to warrant Supreme Court review.
Thanks to Ron Turner (Houston) for bringing to my attention this article from The New York Times last week: VW and Auto Workers Explore Union at Tennessee Plan.
Apparently, Volkswagen is in the process of negotiating with the United Automobile Workers (UAW) at VW's Chattanooga, Tennessee plant on how to unionize the plant and create a German-style works council there.
A tidbit from the article:
The company would be the first German automaker to have such a council at a United States plant. A works council is a group of employees, including both white- and blue-collar workers, that meets with management on issues like working conditions and productivity.
But to avoid violating American labor laws, the plant would first have to be formally unionized, the company said . . . .
None of the foreign carmakers with auto plants in the South are currently unionized.
The part of the labor law that would be violated would be Section 8(a)(2) of the NLRA which does not tolerate employer domination or assistance of labor organizations. This provision makes employer-employee cooperation difficult in the union setting sometimes. This is not an issue in Germany and other countries where employer-employee cooperation inside and outside the union environment is much more common.
Needless to say, it will be interesting to see if this arrangement actually comes to fruition and whether it might provide a model for other manufacturing plans, auto and otherwise, for running a productive workplace with sizable employee input. Also good to see an open-minded employer not mindlessly fighting unionization at all cost and instead recognizing "them as a useful source of ideas from the shop floor and a vehicle to build consensus and employee morale."
Dean Dad has a terrific post -- Egalitarianism Amont the Elites -- on the challenges of Harvard Business School's attempts to engineer gender equality among its students. The points made in the post could be said equally about higher education generally as well as attempts to foster gender equality above the glass-ceilinged workplace. Here's an excerpt:
[Tradditionally, Harvard Business School has prepared] students for the world that actually exists; if that world is hard-charging, brutal, hierarchical, and mostly male, then that’s what you prepare them for.
Apparently, HBS had a change of heart recently, and its most recent graduating class went through an experiment in top-down culture change. The goal was to help women students be as successful as their male counterparts. And it’s crashing headfirst into the dilemmas of egalitarianism among elites. The leadership of the school quickly discovered that students bring their backgrounds and expectations with them, and that the informal, out-of-class culture is much harder to control than classroom discussions. Some areas of equality, such as gender, are within the bounds of possible (if awkward) discussion; others, such as class, would strike at the heart of the entire enterprise. As one student put it, I’m paying a half million dollars to be here; I have certain expectations. Exactly so.
It's worth reading the entire post.
Friday, September 6, 2013
Steve Befort (Minnesota) has just posted on SSRN his forthcoming article in the Washington & Lee Law Review entitled: An Empirical Analysis of Case Outcomes Under the ADA Amendments Act.
Here is the abstract:
Congress enacted the ADA Amendments Act (ADAAA) in order to override four Supreme Court decisions that had narrowly restricted the scope of those protected by the Americans with Disabilities Act (ADA) and to provide "a national mandate for the elimination of discrimination." This article undertakes an empirical examination of the impact of the ADAA on case outcomes. The recent reported cases provide a unique opportunity for such an examination since, with the ADAAA not retroactively applicable to cases pending prior to its effective date, courts have been simultaneously deciding cases under both the pre-amendment and post-amendment standards. This study examines all reported federal court summary judgment decisions arising under Title I of the ADA for a forty-month period extending from January 1, 2010 to April 30, 2013. The study coded the pre-ADAAA and post-ADAAA decisions for both disability standing determinations and for rulings on whether the plaintiff was qualified for the job in question. These preliminary data show that the federal courts are granting employers a significantly smaller proportion of summary judgment rulings under the ADAAA on the basis of a lack of disability status. In addition, the ADAAA decisions exhibit a greater prevalence of rulings on the issue of whether the plaintiff is a qualified individual. On the other hand, the post-amendment decisions show an increased tendency for the courts to find that the plaintiff is not qualified. While the rate of increase in plaintiff victories on the disability issue is outpacing the rate of increase in plaintiff losses on the qualified issue, the latter phenomenon suggest a continuing judicial unease with disability discrimination claims generally and with reasonable accommodation requests more specifically.
Fascinating and yet what I suspected would occur once the definition of disability was amended in the ADAAA to be more employee-friendly: judges would use other parts of the legal analysis to kick these cases out of court on summary judgment before trial. I hope that Congress will consider updating the "qualified individual with a disability"/reasonable accommodation strand of these Title I ADA cases so that the purposes of the statute can be better vindicated.
Of course, I am also not holding my breath that Congress will take up this topic anytime soon.
Just a quick note to alert readers that Ross Runkel, over at his new blog, Ross Runkel Reports, has a handy-dandy new page entitled: US Supreme Court Watch.
The page list all labor and employment law cases set for oral argument for this coming October Term, with a brief description of each case. It also identifies a number of cases that our pending consideration by the Supreme Cour that Ross believes has a decent shot of cert being granted. As Ross points out, all cases he lists link to the wonderful SCOTUSblog.com, where one will find all the briefs and lower court opinions from that case.
The 2013 U.S. Supreme Court session opens on October 7 (just over a month away!).
Thursday, September 5, 2013
This wasn't unexpected, but the D.C. Circuit made it official: the court today denied the NLRB's petition for rehearing and en banc review in NAM v. NLRB [I've just got access to the rehearing denial at the moment]. This was the notice posting case that we blogged about quite a bit when it came out.
Given the D.C. Circuit's political makeup, there was only a small hope that it would take the case en banc. I do think there's a good chance the Supreme Court will grant cert. How they might treat a case is up in the air, of course. The 5-member majority is obviously not a fan of labor, so it's a good bet that the rule will remain struck down somehow. However, I think there's a decent chance the Court would not be willing to write such a sweeping decision as the D.C. Circuit's.
Hat Tip: Patrick Kavanagh