What the 'but-for' test means for employers facing retaliation claims
A federal appeals court has cleared President Trump to strip collective bargaining rights from agencies he calls vital to national security.
On June 17, 2026, the US Court of Appeals for the Ninth Circuit wiped out a lower-court order that had frozen Executive Order 14,251. That order pulls a wide list of federal agencies and their subdivisions out of collective bargaining under the Federal Service Labor-Management Relations Statute - the law that sets union rights for federal employees.
The decision lands squarely in HR territory, because it turns on a question every employment professional knows well: when a worker claims a decision was payback, how does an employer show it would have acted the same way regardless?
Here is how it unfolded. The President signed the order on March 27, 2025. The following month, six unions representing roughly 800,000 federal civilian employees sued, calling the move retaliation for their lawsuits against and public criticism of the administration. In June 2025, a district judge found a "serious question" about that claim and blocked the order. The appeals court disagreed.
Much of the fight centered on a White House Fact Sheet. The unions read it as evidence of hostility toward organized labor. It stated that "[c]ertain Federal unions have declared war on President Trump's agenda," and said the largest federal union "describes itself as 'fighting back' against Trump." But the same document also leaned on national defense, border security and cybersecurity as reasons for the order.
That balance decided the case. The panel applied a "but-for" test, asking whether the President would have signed the order even without any retaliatory motive. It concluded he would have. The order, the court wrote, "discloses no retaliatory animus on its face," and the national security judgment is one the statute largely leaves to the executive.
For HR and employment leaders, that is the takeaway worth keeping. A clear, legitimate business reason can defeat a retaliation claim even when a worker insists there was a hidden motive - so long as the record shows the same decision would have followed anyway. The case is a clean argument for contemporaneous documentation and a rationale that holds up on its own.
The court did not ignore the fallout. After the Office of Personnel Management changed its guidance, agencies began terminating some collective bargaining agreements, which the panel said raised the unions' likely harm. Even so, it found that harm could largely be repaired if the unions prevail later.
In a concurrence, Judge Owens noted this was only a preliminary stage and "potentially is a distinction with a difference," a reminder that the merits are far from settled.
For now, the order stands, and the excluded agencies fall outside federal collective bargaining.
