By Shannon Noelle
On June 9-10, NYU hosted its 77th annual conference on Labor & Employment Law, a non-partisan forum for stakeholders and experts to discuss current labor and employment policy and law. We were privileged to attend the conference as an invited guest of sponsor and leading industry expert firm Resolution Economics.
The conference spanned two days, with keynote addresses from Honorable Jonathan Snare, Deputy Solicitor of Labor, U.S. Department of Labor, and Marvin E Kaplan the National Labor Relations Board (NLRB) Chair. The conference featured panels on topics such as the US Workforce, Reimagining Labor in a Conservative Era, Reimagining Civil Service, Federal Labor Preemption of State Captive Audience, Just Cause and Sectoral Bargaining Laws, Equal Access to Justice Reform Act, Facilitating Lawful Immigration (with speaker Ted Chiappari, Partner at Duane Morris,), Labor Union Political Activism, Future of the National Labor Relations Act, Restructuring the NLRB, AI Issues, Emerging Issues in Employment Arbitration, Employment Discrimination Law and Disparate Impact, and Restrictive Covenants.
Future of the Department of Labor
Deputy Solicitor Snare opened the conference stating that the DOL’s new perspective is “personnel as policy” indicating that the Department has onboarded individuals with extensive and varied experience to bring insight and perspective to the Department’s new enforcement directives. He stated that the Department’s enforcement priorities include “helping employers minimize unintentional errors,” child labor law enforcement, and speedy recovery of back way. With regard to the test for independent contractor status, the DOL will rely on Fact Sheet #13 containing the “economic reality” framework and the 2019 Opinion Letter on Independent Contractors and Virtual Marketplace Companies. In analyzing joint employer status, Deputy Solicitor Snare advised practitioners to look at the analysis in effect under the prior Trump administration for guidance which set out a 4-factor control test. Solicitor Snare indicated that the overtime rule implemented in 2024 and joint employer analysis are currently under review by the Department.
On the topic of OSHA enforcement priorities, Solicitor Snare referenced the recent Sea World fine and citation from 2024 for $16,5550 after a trainer was injured by a killer whale during a training session. Solicitor Snare discussed the general duty clause in connection with this citation, found in Section 5(a(1) of the Occupational Safety and Health Act, requiring employers to furnish a place of employment free from recognized hazards that cause or are likely to cause, death or serious physical harm to employees, stating that this duty is not qualified under common law by the assumption of the risk or contributory negligence doctrine.
There was also discussion of the Department’s implementation on May 15, 2025 of the non-enforcement policy regarding the 2024 Mental Health Parity and Addiction Equity Act (MHPAEA). Solicitor Snare stated that this policy would “cut regulatory red tape” and give workers better access to mental health and substance abuse treatment as compliance with the former law was “burdensome.” And, finally, Solicitor Snare discussed the Department’s initiative to improve pharmaceutical pricing transparency and provide Crypto guidance.
Future of the NLRA and Restructuring the NLRB
The panel on the future of the NLRA and restructuring the NLRB advocated for restructuring the Board as opposed to dissolution, acknowledging that Board law on the National Labor Relations Act (NLRA) changing with each administration lacks clarity and consistency but also noting the utility of a quasi-judicial body continuing to provide guidance and decisions on labor disputes. The panel discussed the upcoming decision regarding President Trump’s removal of Democrat Board member Gwynne Wilcox without cause—which reduced the Board to two members lacking the necessary 3-member quorum to issue decisions as to unfair labor practices—as likely to redefine Board authority and the Presidential executive power across the federal government. The panel concluded that, no matter how the issue is decided, it presents an opportunity for both labor and management to consider how to refashion the Board into an exclusively adjudicatory agency likely to pass constitutional requirements and, at the same time, reduce the incidence of policy oscillation that has plagued the agency for decades.
Acting General Counsel for the NLRB William Cowen expressed cautious optimism that a recent proposal to fund the agency at 4.7% below its current level would be “adequate for us to do our jobs” and expressed that he sees “ a way through this.”
Samuel Estreicher, NYU Law professor, Roger King, HR Policy Association senior counsel, and David Sherwyn, Cornell University professor, discussed their proposal for restructuring the NLRB (recently detailed in a paper published by the University of Pennsylvania Carey School of Law) refashioning the board as a six-member court consisting of two Democrats, two Republicans, and two nonpartisans. Further requirements for board members under this proposal would be that they cannot have represented labor or management interests for a six-year period prior to nomination to the Board to show a “propensity for independence.” This requirement is to ameliorate the policy oscillation and lack of consistency in board law and to lend credibility to the agency. The article authors indicated that they have gotten reasonable interest and traction from lawmakers and are actively in discussions regarding their proposal.
Developments in AI
On the topic of AI, panelists discussed the proliferation of generative AI in the last 18 months which is used across the employment life cycle in sourcing, recruiting, predicting high potential employees, employees likely to leave, and even AI that generates job descriptions. Experts indicated that the federal regulatory landscape is evolving with the Trump administration expected to roll out an action plan by the end of July. Several recent reports discuss a Trump administration proposal, included in a House-passed budget reconciliation bill, that would implement a 10-year federal preemption or moratorium on state and local AI laws and regulations. Thus, federal regulation of the AI space is expected to be on the radar of practitioners and experts alike.
Implications for Companies
Employers must stay compliant with existing law (despite shifting prosecutorial priorities current labor and employment laws remain in effect) and monitor legal developments on the horizon. Employers must remain vigilant in their compliance efforts and seek legal guidance for assistance in navigating this rapidly changing legal landscape.