Is That National Labor Relations Board Constitutional?

Bob is fascinated by the balance between the need for regulation and the vast growth of the administrative state. We are also fascinated by just how much the political winds impact the law...even though we like to believe it is solid and hard to change.  Look no further than the 88-year-old National Labor Relations Act, and the National Labor Relations Board (NLRB) which it created. It is now under fire at the Supreme Court.

A product of the New Deal, the NLRB has yet to face such a challenge in the modern era, but major companies like SpaceX, Starbucks, and Trader Joe's have marshaled a constitutional challenge to the legitimacy of its composition and enforcement activities, hoping to eventually find a sympathetic ear before the U.S. Supreme Court, currently controlled by a conservative majority. 

These arguments range from challenges to the board's impartiality to issues concerning the separation of powers doctrine, given the inability to remove board members except “for cause,” to violations of due process and deprivation of the right to trial by jury under the Fifth and Seventh Amendments, respectively. And given the Biden NLRB's aggressive policy and enforcement prerogatives, these arguments have begun to become commonplace defenses against its actions.

John Balitis knows the NLRB. He knows what it is like to "walk in" and face an administrative investigation/prosecution/enforcement/judicial and appellate body...ALL IN ONE!

His prediction? Somehow the board...which impacts virtually every workplace...is likely going to be a different animal once the Supreme Court rules.  How different?  What does it mean for employers?  Employees?

Take a listen now!

Transcript

Bob Sewell: 0:04

Is that even legal? It's a question we ask ourselves on a daily basis. We ask it about our neighbors, we ask it about our elected officials, we ask it about our family and sometimes we ask it to ourselves. The law is complex and it impacts everyone all the time, and that's why we are here. I'm attorney Bob Sewell and this is season five of the Worldwide Podcast that explores that one burning question. Is that even legal? Let's go.

Bob Sewell: 0:36

Today's guest on the show is John Blitas. He's a well-known attorney in Arizona. He practices labor and employment matters. He is considered an expert in the field. John, welcome to the show, Thanks.

John Balitis: 0:50

Bob, thanks for having me.

Bob Sewell: 0:53

I was wanting to have you on because of your expertise in labor law, and I recently came across some articles about the National Labor Relations Board and National Labor Relations Act and basically what I'm seeing in these articles is that some well-known large employers Starbucks, tesla, elon Musk, trader Joe's and a few others are starting to claim that this act, starting to claim that this act, this act that's been around for nearly 100 years is unconstitutional. Have you?

John Balitis: 1:33

heard these things Right. Oh yeah, it's kind of a big story now nationally and it's focused really more on the National Labor Relations Board than the act itself. I mean people think of the two sort of like together because they're paired. When Congress passed the National Labor Relations Act in the 30s, as part of the New Deal it created the National Labor Relations Board as an agency that is dedicated to enforcing the act. And really what is stirring up the constitutional controversy now is the structure of the board itself, not so much the act, because the act as a law, I think, is perfectly fine. The board, on the other hand, with the way it's composed, is accounting for constitutional challenges. And I'll add that what's interesting about sort of the current environment and what we're seeing in terms of these challenges is.

John Balitis: 2:35

this is not the first time it's happened. The board is structured in a very unusual way which we'll probably talk about way which we'll probably talk about and soon after it was created in the 30s. These same constitutional challenges were made to the board's composition back then, and the Supreme Court rejected them. But I think what you're seeing now is like we've seen with, for example, reproductive rights. The court in a modern era, with a different political composition, is now looking to be right to overturn itself, and so we have people coming back making the same arguments that they made in the 30s, with the hope that the Supreme Court will come out differently on them.

Bob Sewell: 3:20

Yeah, let me back up a little bit for our listeners. Yeah, let me back up a little bit for our listeners. Back in 1935, franklin D Roosevelt. He's president. He's looking for ways to increase employees' rights. He's looking for ways to help the common man get back on his feet. Congress passes the National Labor Relations Act and the enforcement arm is the National Labor Relations Board and essentially what this act is doing is it's helping private sector employees collective bargain, it's helping them, with their establishment, maintain trade unions and it's essentially just trying to help the worker gain power against the employer. Now the board is there and as this enforcement arm and as the administrative tool to address the issues found in the act, do I got this right?

John Balitis: 4:27

Yeah, no, you're absolutely right, and I think what's interesting about the act and of course, like you said, the board is there to design and create it, to enforce it Is that the I think, generally speaking, people think of the National Labor Relations Act as a federal law that governs unionized workforces, and to a lot larger extent it does.

John Balitis: 4:51

Like you just mentioned, it gives workers the right to organize, bargain, unionize and so on. But the act also applies to all private sector employees, whether they're unionized or not, in other respects which a lot of businesses forget, and the one most important part of it that I'm talking about is the right embedded in the act for workers to communicate with one another about their wages, hours and working conditions, even if those communications are highly critical. And if an employer violates, or allegedly violates, any of these parts of the act, tries to chill workers' rights to unionize, organize, bargain, or tries to chill their communications among one another, that then results in an unfair labor practice charge which then goes before the board to be adjudicated, and then that's how the board and the act sort of work together to make up the whole picture.

Bob Sewell: 5:54

So what is it about the board that's changed?

John Balitis: 6:00

Nothing about the board has changed. It's the same structure that we had when it was created back in the 30s. I just think what we have now is, even though we have a Democrat in the White House, which accounts for a swing back toward an effort to enhance worker rights, the Supreme Court in its current way, it way it's composed, was populated by a Republican, and I think Republicans are, generally speaking, historically known for wanting to enhance employer rights. Business rights changed. I think the lobby for businesses and employers sees an opening to try and convince the court to change its view on whether the board itself is constitutional, because we have a court populated largely by Republican justices right now that probably would be keen to taking that up right now. That probably would be keen to taking that up. But we can get into it. It's the structure of the board that makes it so unusual, that makes it susceptible to these challenges.

Bob Sewell: 7:14

Tell me about that.

John Balitis: 7:17

Well, you know, the board at the risk of oversimplifying it is not really a good place to be.

John Balitis: 7:25

If you're an employer, you know if you're facing one of these unfair labor practice charges brought by a worker or a group of workers, and the reason is that you have prosecutors, judges and an appellate structure all under one roof.

John Balitis: 7:42

That's what's so unusual about this body structure all under one roof. That's what's so unusual about this body. So when you're embroiled as a representative for an employer at the board, you kind of feel like the deck is stacked against you because all of those functions are all under a single umbrella at the board. And so what that translates into from a constitutional standpoint is you've got a prosecutorial arm, which is generally thought of as an executive function, you've got a judicial arm, which are the administrative law judges and the appellate structure within the board. And then keep in mind that the board also makes policy and engages in rulemaking, which is fundamentally a legislative process. And so you look at this structure, you know, sort of like in a simple way, and it's kind of like how can all this coexist in one place? Because all of this, according to the Constitution, is supposed to be separate. So that, I think, is the primary structural challenge to the board's composition. There are other constitutional arguments that are being made about it, but from a structural standpoint that's really what's going on.

Bob Sewell: 8:55

Yeah, that's odd, not odd, but it's interesting that that's the way the board is set up and you could see why. You know well, the traditional wisdom is that when we have a Republican, pro-employer person in charge, a president in charge, and that the board is more friendly toward employers, and when we have a Democrat in charge, and that's a Labor Democrat, generally considered to be less friendly towards the employers. And you could see that would be true because you're getting all of these functions under the same roof. Have I got this right?

John Balitis: 9:41

Yeah, yeah, yes, you do, but the thing that's going on now is no one's going to the board and saying we would like you to declare yourself unconstitutional.

John Balitis: 9:53

What's happening is SpaceX, starbucks, trader Joe's, amazon they're all filing lawsuits in federal court, hoping to get up to the Supreme Court, and they're making arguments about, for example, separation of powers, which is just what we just discussed, and they're taking the position that the board as a body should no longer exist because it violates fundamental constitutional principles.

John Balitis: 10:18

And although we have a Democrat in the White House, which is probably loathing this effort, who is loathing this effort? We have a court, though, that is a majority conservative bent now, which is pro-business, and the thinking is that if we approach the court with the constitutional challenges in 2024 that were first made in the 1930s, we may actually have a run at getting the court to reverse itself and maybe not dissolving the board, but dismantling pieces of it, and that's what's going on right now. I think the employers and their attorneys are seeing this as an era where there's an opening because of the political affiliation of the justices on the court is an opening because of the political affiliation of the justices on the court, and if they can do that, then Congress would have to step in.

Bob Sewell: 11:11

They'd have to reorganize the board and introduce legislation, and in a Congress that is paralyzed it's not likely to change much, or rather it's not likely to get going in reorganizing the board. Is that what they're thinking?

John Balitis: 11:29

Yeah, I think you're hitting the nail on the head because, frankly, I mean it would be a mess, you know, if the challenges succeeded even in part. And, like I said, I don't see this being sort of like an all nothing proposition, because we've got arguments about the fact that we've got Seventh Amendment arguments, we've got Article III arguments, we've got the separation of powers argument. So there's a number and I think this is deliberate. Let's try as many arguments as we can make this is from the standpoint of the employers to see what we might accomplish here. And if you just took one of those and convinced the court, yeah, this creates a problem. So we're going to have to carve this out of the board structure, we're going to have to dismantle this aspect of the board. It would really be chaotic. And so I think the, the employers are thinking you know, no matter how much of this we can succeed on, it's going to be good for business. Right, and that's the approach. I think that's the thinking.

Bob Sewell: 12:56

One of the things that bothers the average American is we want to think that the law is well settled, that you could point to the law and one court say no, that's not constitutional. Another court that says it's constitutional. How do you respond to that?

John Balitis: 13:14

That's the way it is. I mean, you could look at it as just a feature, or maybe as a vulnerability, of what otherwise is an extraordinary constitutionally based government. Because you know, people can talk about the executive branch and the legislature and all that. I've always thought and maybe it's because of just my background in law like yours, that I think the Supreme Court, those nine people, are probably more powerful than just about anybody else, and what you just described is the reality, because you can.

John Balitis: 13:50

Roe v Wade is a perfect example of it and, like the average citizen sitting back going, I wish I could have some permanent stability in the way laws are interpreted and enforced. It just can't happen because we have two primary political parties with 180 degree different beliefs about fundamental issues reproductive rights, gun control, capital punishment and so on and the fact is that when you put justices on the Supreme Court that are members or affiliates of one party or the other, that can color how decisions are made right, and that's just. It's ingrained in our system I don't know how you'd ever get away with it, or get away from it.

Bob Sewell: 14:34

I should say yeah, I've had constitutional law experts on, we've discussed this issue and the response is always well, that's the Constitution. And just because we believe we have it right on day one doesn't mean we have to believe we have it right on day two and we could be and should be a dynamic society. And essentially that's the argument. And if we don't like it, what the justices?

John Balitis: 15:13

did. We can just go back and change the Constitution or get new legislation and try new things that may work. Yeah, I mean that's the escape valve. I mean if you don't like what the court did, then just muster it up and then pass some legislation and then undo the court. You know the court's decision right, but it's also a function. You know it's not just purely political right, because there are really two schools of thought.

John Balitis: 15:33

When you talk about if you've had the constitutional people on, you probably know this. I mean, there are some judicial officers who look at the constitution and say you have to read this and interpret it and apply it as a living document, because when it was created no one could foresee what's happening today in hundreds of different ways in modern American society. Then there are other judicial officers who say, no, they are strict constructionists. You have to read this thing the way it's written and you can't look at it like a living document. So you have these two competing judicial views of how to interpret the Constitution and then overlay that with politics, and it's a kind of a complex proposition, which is why you see what's happening happening.

Bob Sewell: 16:26

Now I want to get back to the constitutional issues within the National Labor Relations Board, and if big employers are successful in dismantling portions of the board or causing the board to, or causing Congress to go back and redraft, is that bad for labor?

John Balitis: 16:57

No, it's not bad for labor. If by labor you mean management business employers, it's not bad at all.

Bob Sewell: 17:04

Is it bad? I guess it's bad for the employee.

John Balitis: 17:08

Well, I think the answer to that probably is yes, because the board is a very, very employee-friendly place, at least in my. I mean, I can't speak for everyone, right, but we talked about how it's unusual to have prosecutors, judges and an appellate structure all in one place. You walk in there as an employee, you're feeling pretty confident, you walk in there as the employer and, like I said before, you get the sense that the deck is stacked against you before you start. So if parts of the board were dismantled, I think it would dilute the I won't say it's a bias, but it would dilute the level of comfort I think that employees would have in using that agency to enforce their rights, because right now it's kind of like a perfect storm of functions that all I think are very helpful to workers. And I mean, I'm not speaking, like I said, I can't speak for everyone else, but I think that's pretty commonly thought, right.

Bob Sewell: 18:18

Yeah, yeah, I mean, you know. I mean if you've ever been an employer, been on, you know an attorney for an employer, which you have. I'm certain a lot of employers have found themselves in the crosshairs of the board inadvertently.

Bob Sewell: 18:42

Oh yeah, that happens all the time. You know, I have family members that work for big corporations and their middle management is constantly violating the act and they're like don't go anyone what we're you know. Don't go out and tell anyone what we're paying you now, you know, labor worker, because we don't want this to get out right. Well, that's not going to go well with the board, so I could see this.

John Balitis: 19:16

That's an understatement board.

Bob Sewell: 19:22

So I could see this. That's an understatement. I could see this as an employer perspective the frustration that when you find yourself before the board, you find yourself being disciplined, you find yourself paying out or something to this effect. And you weren't trying to be an evil employer, you're trying to be a good employer. You tried to be a good employer. Am I getting this right? Have you seen this happen?

John Balitis: 19:43

Yeah, you're getting it right because you walk in, like you know, figuratively speaking, and it's like the person who's investigating the charge against you and who's going to prosecute it, the prosecutor's there and who's going to prosecute it? The prosecutor's there and you're already in trouble because otherwise you wouldn't be talking to the prosecutor, because the prosecutor's sitting down and saying, okay, let's develop a trial schedule Because you go to trial. You basically go there and it's like a trial and in front of an administrative law judge, and then so this person, who's the investigator, the prosecutor, who's a lawyer, is going to prosecute you and then you go in for your trial and the administrative law judge is a part of the same agency where the prosecutor works. And then you get a result and you want to appeal it and then the appellate structure, the board, is under the same roof as the prosecutor and the administrative law judge. So how are you going to feel as the employer walking into that scenario, hypothetical you gave about don't tell anybody about what we're paying you. That that's like a perfect. That's one great example of how an employer could trip up and find themselves with a with a charge, uh, going to trial because the the act says you, you non-supervisory staff personnel, workers have the right to talk about wages, hours and working conditions. You can't. You can't tell have the right to talk about wages, hours and working conditions. You can't tell grassroots workers not to talk about their comp. That's not lawful under the act.

John Balitis: 21:24

One other area that we saw this unwitting violation of the act and tons of employers getting charges filed and being brought up before the board was when social media whatever 10, 15 years ago, you know became so popular that people were really starting to use it.

John Balitis: 21:41

The engine, the social media engine, was gearing up and workers were online on Facebook and you know, instagram didn't exist back then but whatever platform they were on grousing and complaining about conditions at work and in really critical ways, like calling their supervisors profane names and things of that nature, and the employers were just getting incensed by this and just firing people. And none of the employers really gave thought to the fact that social media was just a different way, a different platform to communicate. You can talk face to face, you can talk over the phone, you could email and text or you could be on a social media platform complaining, but the employers were so frustrated by this chatter online that was critical of them that they sort of lost sight of what the act required or prohibited and there was a time when we were telling clients you have to look past this. You know you can't discipline somebody for complaining about their job on social media. And it was another great, great example of employers sort of walking into the buzzsaw and not even realizing it.

Bob Sewell: 22:55

Oh, yeah, well, and I understand the frustration from the employer perspective, right, I mean, there's websites dedicated, dedicated to being a, a, you know, to criticizing your employment, your employer and or praising them, which which is less likely to happen, but criticizing and describing what it's like to work there. I think a glass door is one of them. But part of me also says, hey, but from the labor perspective, isn't that a good thing that we should be able to go out and talk about our employers and talk about the conditions of work? And this makes the employer more sensitive, because they have to compete with other employers in the same field for better conditions, better treatment.

John Balitis: 24:04

I think, like in a vacuum. What you just said is a good observation and is accurate, just like if you just took what you said and just assessed it the way you said it. Here's the problem Despite the benefits that you have for sort of having this transparent system where people can complain and then it creates competition and it creates reasons for employers to improve, there are collateral benefits to it. I think what the employers argue about is where the board draws the line. What the employers argue about is where the board draws the line, and what I mean by that is how profane and critical and angry can that communication get before it loses its protection under the act? Because what you said makes perfect sense In an ideal world. If it was just like oh you know, kind of like a suggestion box, I think it would be better if we, you know, had Starbucks coffee in the lounge, not generic coffee. Yeah, me too. I think that coffee is horrible. Okay, well, you know whatever.

John Balitis: 25:08

But when you start saying, when you start calling your supervisor names, and when it gets to that point, I think employers generally look at it and say why is this protected? And the response from the board historically has been this is where we're going to draw the line. If there's a threat of violence or commentary or remarks in that communication that would potentially cause harm to somebody, that's where we will say the communication loses its protection. So you can call your supervisor a profane name and criticize him or her all day long, but if you say I think we should go over to the supervisor's house and do something, then you've stepped as the employee communicating you've stepped over the line and I think most employers would argue that line is way too far to one side. You know, we should pull the line more toward the center and not allow a lot of this profanity and criticism to go on, because it isn't entirely constructive, it's disruptive, right.

Bob Sewell: 26:18

Now with regard to the structure of the board. When we have the rulemaking, the enforcement, the police function right all under one roof, that's incredibly efficient.

John Balitis: 26:57

Right and people don't have to walk down the street or across town to get from the prosecutor to the judge or the appellate body. Really efficient. We're all here, we're all in one place. But on the other hand, it creates well. Employers perceive that it creates problems because the employers perceive that it creates a bias and, what's more important, efficiency. Or having a truly neutral agency, like if you take the Equal Employment Opportunity Commission, another federal agency that was created to investigate, that was created to investigate, not always enforce, but investigate anti-discrimination laws. Right, it's not like that over there. They investigate charges, they render findings and then if someone, if the worker, is dissatisfied with the finding or wants to take it a step further, they go down the street to the courthouse and file a lawsuit in federal court. Completely separate. The judicial enforcement mechanism for those laws and the agency that investigates the alleged violations are completely separated.

Bob Sewell: 28:20

But that's not how the board operates violations are completely separated, but that's not how the board operates. So what do you think? Do you think if you were a betting man and you had to go to Vegas and you had to make a decision, you got a thousand bucks? You must lay a wager. Are we going to find that portions of the board are unconstitutional, and which portions do you think you'd be most likely to bet are unconstitutional or constitutional?

John Balitis: 29:02

choice of the matter, I got to put a wager down. I'm going to say, because of the current composition of the court and seeing what happened with Roe v Wade, that I think it's likely that something employer-friendly is going to come out of this, meaning, if you want to translate, that there's going to be a tweak or an adjustment to the structure of the board. That would be my. It's just a prediction and it's kind of a tough call when you confront me with a question like that, but if you want me to predict, I'll say you know, on balance, yeah, I think something's going to happen In terms of which one of these could potentially fly. I mean, we've talked about the separation of powers, but we haven't talked about the Seventh Amendment issue, which is, you know, a lot of remedies, yeah, a lot of the remedies the board has. The other thing about the board is that it has extraordinary remedy power. I mean it has, it has the this, this stunning remedy power that even federal district court judges don't have in terms of what it can do. You know it. Just, it can force employers to hire workers back, do it can force employers to hire workers back. It can force employers to post things on their walls, eliminate policies, create policies, change policies. It's extraordinary. And the constitutional challengers are saying now, in today's world, why aren't these claims and remedies being heard and decided in the jury trial process? These really are claims that the Constitution guarantees the litigants or parties, if you will a right to trial by jury, and right now they're getting decided by administrative law judges. So there is something that I think is pretty catchy, right.

John Balitis: 30:44

And then the other. Then you have the Article III argument, which is all these administrative law judges get appointed. Okay, that's fine, but they sidestep the Article III process entirely. There's no nomination confirmation process, senate hearings, votes, right, nothing. They're federal judicial officers. No, they're federal judicial officers that get appointed and then they're there. And so what happens to Article 3? Why aren't these federal judicial officers subject to the Article 3 process? So these the separation of powers argument is kind of like a. I think there's a ton of validity to it. The reason I think that probably isn't going to be the one that gets the box ticked off is because that's the one that could theoretically dismantle the whole operation. I think it's more likely that you're going to see something like a Seventh Amendment argument succeed or an Article III argument succeed, which would not be nearly as disruptive as succeeding on the separation of powers argument. So long answer to a short question, but that's kind of where I come out.

Bob Sewell: 31:58

And the Seventh Amendment argument would. It would be that I have a right to a jury trial. Of course I have a right to a jury trial that you're deciding my, you're deciding my, my fate, and it's it's a matter of $20. Right, I mean, I could see that. In which case would we have a administrative law judge presiding over a jury trial, have an administrative law judge presiding over?

John Balitis: 32:23

a jury trial. Well, I guess that's the way you could tweak it. You could tweak it that way and you could say okay, well, we won't remove the ALJs, They'll still be there, but we're going to impanel juries for a certain number of or certain types of claims that come up through these charges. Or you could just extract all those administrative law judges from the whole agency and say you know, we can have the board itself and the prosecutors there, but the charges now are going to get litigated to federal court in front of an Article 3 judge.

John Balitis: 32:56

You know, there could be, and all I'm saying is that there are multiple, probably, solutions to address the issue the Article 3 issue if it passes some muster with the court. A lot of times we talk in law and with developments like this sort of metaphorically, and there's a lot of real world stuff going on here Now. When President Biden won the election and we put a Democrat in the White House, we were telling clients at the time, back in 2020, you're going to see a huge shift in policymaking and you had a nice four years under the Trump administration with employer friendly rulemaking and legislation and decisions and so on. It's going to shift. It might take a couple few years to shift, because you can't change these things overnight, but you're going to see a shift right, and so what we're talking about today is a court that was populated by a Republican, so you have efforts to really exploit the Republican aspect of the court, but in the current administration, it's going in exactly the opposite direction. So this Tuesday, the Federal Trade Commission voted to outlaw non-compete agreements.

Bob Sewell: 34:17

Yeah.

John Balitis: 34:18

It's just extraordinary. On Tuesday, the Department of Labor announced that the salary threshold for exempt workers is going up, so millions of workers are now going to be entitled to receive overtime if they don't meet the salary threshold requirement for an exemption from overtime right. The board, in 2023, decided to prohibit non-disparagement provisions and confidentiality provisions in severance agreements with workers. So all of these things are the product of political changes and political biases in the system, and nothing is nothing sort of is a clear example of this happening than when you take the National Labor Relations Board, when you look at one of the first things that Joe Biden did after he was inaugurated that day is he fired Peter Robb, who was the Trump-appointed general counsel of the National Labor Relations Board, and he appointed Jennifer Abruzzo, who's now the general counsel of the National Labor Relations Board. It's one of the first things he did after he was sworn in, and it is a real-time, real-life example of just how pronounced politics is in terms of how rights the rights of workers and employers alike are affected by these developments.

John Balitis: 35:57

And so that goes beyond the discussion today. It goes beyond a discussion just about the board, but it's all part of this whole tapestry of what's going on with politics and the Supreme Court. It's really interesting, but it's not just a theoretical talk, it's reality.

Bob Sewell: 36:16

I guess is what I'm saying oh yeah, absolutely, and people forget that the administrative side of the government you know, something that came about primarily during the great depression era, where we started to see the rise of the administrative state has a huge effect on our lives and we haven't explored those issues since the Great Depression and whether or not the administrative state should stick around. And during the Great Depression there was all sorts of challenges where we said, hey, you have these wings of the government that are creating laws that aren't the bodies that we asked to create laws. We didn't ask, we didn't elect anyone at the National Labor Relations Board.

John Balitis: 37:19

Exactly.

Bob Sewell: 37:21

We elected, you know, joe Schmoe Senator, joe Schmoe, house of Representatives person and so it seems we're approaching 100 years of the administrative law, the rise of the administrative sector. Yeah, I think it's time to relook at these issues and for America to consider them once more. And the fact that you have a Supreme Court that's willing to do it. It's an interesting fact and I think it's being overlooked by mainstream media. I think it's because most people don't understand the administrative state. So, john, yeah, I think that's a great point, go ahead this has been incredible.

John Balitis: 38:13

What I was going to say is yeah, just to cap off on that, I sent around a client alert on Wednesday about the FTC's decision about non-competes and the caveat in the alert was this is going to get challenged in multiple lawsuits and people are going to be making the argument that you just made, which is the FTC is not the body that legislates for us. It's an administrative agency and you can't let the FTC or other administrative agencies create and enforce the equivalent of laws. And that's your point. I think it's a great point and I think it's going to start getting a lot more attention.

Bob Sewell: 39:03

Oh right, the these you know you could from a very that, that that alert you sent out, or regarded the, the and non-compete clauses in contracts with employers and employees, the. From a very Lawyerly perspective, this was something that we primarily dealt with at a state level, and every state had the right to make their policy on non-competes. And now we have the federal government stepping in and basically just wiping out our state laws and saying, well, we think this is the best way, our state laws and saying, well, we think this is the best way. And instead of being able to compete state to state for employers, arizona is always trying to say we are the best state, come, bring your businesses here and make our population your workforce. You know we now have the federal government stepping in on a really significant piece of legislation and not even anyone we elected.

Bob Sewell: 40:12

Right, you're absolutely right, john. Thank you for coming on. It's been incredible having you. You're very well versed in employment law and labor relations, and it's it's really good to talk to someone and hear what they have to say. So thank you.

Bob Sewell: 40:28

Thanks for listening to the podcast. Is that Even Legal is now listened to in 100 countries and available on virtually all podcast platforms. Leave us a review, send us some show ideas and do so at producer at evenlegalcom. Don't forget, as smart as we sound and as lovable as we are, we are not your lawyers and we are not giving you legal advice. But if you need some legal advice, get some. There are some great lawyers out there and we are always ready to help. See you next time.