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The D.C. Circuit Court of Appeals decision in First Student Inc. v. NLRB suggests the judicially-created “perfectly clear” successorship standard to determine whether a company inherited its predecessor’s bargaining agreement is ripe for a challenge.

A divided panel concluded that under the National Labor Relations Act, the “perfectly clear” successor standard applied to a successor employer in order to prevent employees from being “lulled” into a false sense of security or into not looking for other work.

The Sept. 3 decision is a stark example of the need for attorneys to anticipate and to shape arguments based on the sea change occurring in America’s courts despite the “current” state of the law.

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This article was originally published in Bloomberg Law.