Leading experts at an NYU webinar discussed three major constitutional challenges to the National Labor Relations Board (NLRB) in light of recent Supreme Court decisions: restrictions on presidential removal of Board members, the status of administrative law judges, and potential jury trial requirements. While panelists predicted the Supreme Court may be reluctant to completely invalidate the NLRB's structure, they acknowledged growing judicial skepticism toward administrative agency independence, with potential implications for labor relations and administrative governance more broadly.
NYU law professor Samuel Estreicher and 3L Sara Spaur argue that the premise of a recent National Labor Relations Board proposed rulemaking—that an employer must exercise direct and immediate control over employees to be a joint employer under the National Labor Relations Act—is not supported by the common law, as is required. Estreicher and Spaur explain that the Restatements of Agency and four key cases support the opposite conclusion, that the test for employer status is not actual control, but simply the right to control employees.
