Compliance Stuff

At a Glance For nearly 50 years, the Supreme Court’s decision in  NLRB v. Gissel Packing Co . governed when the Board could issue a bargaining order despite a union’s election loss. In 2023, the Board departed from  Gissel  in  Cemex  by making bargaining orders the default remedy when employer unfair labor practices require setting aside an election. As the first federal court of appeals to review a  Cemex  bargaining order, the Sixth Circuit denied enforcement 2-1 on the ground that  Cemex  was an improper exercise of the Board’s adjudicatory authority. In  Brown-Forman v. NLRB , the U.S. Court of Appeals for the Sixth Circuit became the first federal circuit court to review the National Labor Relations Board’s recent  Cemex  decision. The court found the Board engaged in improper rulemaking when it altered decades of precedent by mandating a bargaining order whenever the employer commits unfair labor practices (ULPs) that re...

The U.S. Court of Appeals for the Sixth Circuit’s (Sixth Circuit)  decision  in  In re FirstEnergy Corporation  provides important guidance on how companies can preserve attorney–client privilege and the attorney work product doctrine during internal investigations – guidance that translates directly to cybersecurity incident response investigations.  The Sixth Circuit confirmed that internal investigations led by outside counsel, where legal advice is rendered and such investigation is undertaken because of real or reasonably anticipated legal exposure, remain protected under attorney-client privilege and attorney work product doctrine, as applicable, even when the findings later inform business or operational decisions. For companies facing increasingly frequent and complex cyber incidents with subsequent class action lawsuits, the Sixth Circuit decision offers a clear message: engage outside counsel early, ensure such counsel leads any cybersecurity investiga...

The Sixth Circuit’s recent decision in  Ohio Telecom Association v. FCC , Nos. 24-3133/3206/3252 (August 13, 2025), offers a powerful road map for agencies looking to regulate after Congress has used the Congressional Review Act (CRA) to strike down prior rules. For the Occupational Safety and Health Administration (OSHA), which saw its 2000 ergonomics standard disapproved under the CRA in 2001, this decision suggests a viable path to craft new, materially different ergonomics regulations without violating the CRA. Quick Hits The Sixth Circuit’s decision in  Ohio Telecom Association v. FCC  provides a framework for federal agencies, such as OSHA, to issue new regulations that are materially different from previously disapproved rules without violating the CRA. The decision clarifies that the CRA does not impose a permanent ban on regulating the same topic, as long as the new rule is not “substantially the same” as the disapproved one. Under the Sixth Circuit’s “substanti...

On August 8, 2025, in  Bivens v. Zep, Inc ., the United States Court of Appeals for the Sixth Circuit held that employer liability for nonemployee harassment requires proof of the employer’s intent, a departure from the previous negligence standard historically relied upon by other federal appellate courts in accordance with prior EEOC guidance. Background Dorothy Bivens, a Black sales representative for Zep (a cleaning products manufacturer), was terminated during a company-wide reduction in force. Prior to termination, Bivens experienced an incident where a client of Zep, while she was at the client’s workplace, locked her in his office and asked to date her. She reported this to her supervisor, who reassigned the client to another sales team. Later, Bivens was terminated as part of a reduction in force. Following her termination, Bivens sued Zep for hostile work environment, harassment, retaliation, and discrimination in violation of Title VII of the Civil Rights Act of 1964 (Ti...

On June 5, 2025, the United States Supreme Court issued a unanimous opinion in  Ames v. Ohio Department of Youth Services , rejecting a longstanding rule applied by the Sixth Circuit and other circuit courts that imposed a heightened evidentiary burden on majority-group plaintiffs bringing claims for discrimination under Title VII of the Civil Rights Act. Specifically, the Court held that such plaintiffs are not required to demonstrate “background circumstances” to establish a  prima facie  case of discrimination under the  McDonnell Douglas  framework. In doing so, the Court resolved a circuit split and reaffirmed that Title VII’s protections apply uniformly to “any individual,” regardless of demographic status. Background: Sixth Circuit’s “Background Circumstances” Rule Marlean Ames, a heterosexual woman, sued the Ohio Department of Youth Services after she was denied a promotion and demoted, with her previous position filled by a gay man. She alleged that the...