Jottings By An Employer's Lawyer

Friday, January 25, 2013

What Now for the NLRB? Recess Appointments Invalid

Although undoubtedly not the last word, today's opinion by the D. C. Circuit Court of Appeals limiting the President to make "recess appointments" only between sessions of Congress, is a major break in precedent, not so much with prior court decisions but with prior practice by Presidents of both parties. Obama Labor Board Recess Appointments Are Unconstitutional, Federal Court Rules.

The political science ramifications for the balance of power between the Senate and the President, and how government operates are enormous, and will no doubt now get a lot more attention.  It makes the agreement apparently reached by the Senate Majority and Minority leaders on filibuster even more important.

Since the actual case that makes the decision involves the NLRB, and since the NLRB unlike some agencies has no provision to provide for members once terms expire (such as the current members serving until a replacement is appointed and confirmed), the logical effect of today's opinion is to shut down the Board.

At a minimum, any action that it takes is subject to a challenge. Given that the court deciding it is the jurisdiction where the Board actually sits, seems to me to pose even more problems, that might not be true if the decision were made in another jurisdiction.

While folks may disagree with the results of the decision, and already news media are pointing out that the three judges who sat on the panel are Republican appointees, they should read the opinion first.  Although the concurring judge makes a good point that having decided the initial question, that the recess appointment is limited to the inter-session Recess, at which there are two or three at most in every Congress, they should not have reached the second question, whether the President's argument  that the Senate's current procedural device for avoiding a recess was a sham, it is hard to say as a general rule that this was done by an over reaching court.

What Novell Canning v. NLRB (D.C. Cir. 1/25/13) ultimately does is serve as a good reminder of the fact that the Constitution is a governing document. As Chief Judge Sentelle noted in his majority opinion:
In any event, if some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the
Constitution commands. ...
The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.
As I say, this is not the last word, but it is a very, very significant decision far beyond just the world of labor law. However, for the beleagured NLRB, it could be very well the death knell of the agency, at least for the forseeable future.

As always with developments of this type, the thought that comes to mind is the law of unintended consequences.  What makes it such a powerful rule is that by definition, that means no one knows what comes next.

Hang on.

Update: Not too surpringly, the immediate reaction from the Board is that they disagree and will continue to issue decisions. See Statement by Chairman Pearce on recess appointment ruling.

One correction: the concurrence did not disagree with the conclusion that the President does not get to decide when the Senate is in 'the Recess.' The concurrence disagreed that the majority should not have reached the other major issue, that the Recess Appointment clause only applies to positions that become vacant ("that may happen") during 'the Recess.' That could be a much more stringent limitation, because it would narrow substantially the openings for which recess appointments were possible.
One fact that can't be ignored is that Obama, through this attempt on defining when the Senate is in recess, sought to invade the prerogative of the Legislative Branch. The courts must recognize that if he gets away with that, his next move will be into the Judiciary's turf.
Obama has thrown down the gauntlet by his reappointing Block and Griffith last Wednesday.
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Wednesday, January 23, 2013

The "New Sheriff" Leaves Town

After arriving at the Department of Labor, Hilda Solis famously proclaimed that there was a new sheriff in town. Hilda Solis, new sheriff at the U.S. Labor Department.

Today, she leaves office with a paean to public service. Beginnings and Endings: My Journey of Public Service.

Too often, in the heat of partisan battles, it is easy to forget that although what we do for a living, i.e. representing employers, often puts us in an adversarial position to those who work in the areas that regulate employers, that what motivates those who do public service is the public good. As Secretary Solis says,
We don't do what we do for the money, or the glory; we do it because public service is the very best way to make your own, unique contribution to the world. Leaders may change, circumstances may change, but our service must be constant. It forms an unbreakable bond between ourselves and our communities, our country and the people we care about.
And even though we may disagree not only with how they go about achieving it, but sometimes even what they seek to achieve, we should always acknowledge the importance of those who choose public service.

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Friday, January 04, 2013

Veganism Protected As a Religion? Not So Fast

Writing from Austin, where almost every menu offers at least vegan alternatives, I hate to put a damper on what is surely going to be the quick take-away from a recent court decision refusing to dismiss the religious discrimination claim of a hospital employee fired for refusing to take a flu shot because as a Vegan the ingestion of a vaccine created from eggs would violate her ethical and religious beliefs.  Chenzira v. Cincinnati Children's Hospital Medical Center (S.D. Ohio 12/27/12). 

As an example of what I anticipate, at babycenter, there's this headline: Exciting News! Veganism qualifies for religious exemption (at least in Ohio)!! Well, we will see.

Before getting too excited, it is important to note that this ruling was based on a Motion to Dismiss on the pleadings, so the standard for survival was quite low: "The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim." A question the Court answered this way:
it is plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.... Accordingly, at this early stage of the litigation, the Court finds it inappropriate to dismiss Plaintiff's claims for religious discrimination based on her adherence to veganism.
Still, this highlights an area where courts would really not like to go. I still go back to the Cloutier v. Costco decision from the 1st Circuit, as an example of just how courts view the murky waters of discerning what will meet the standard for protection under Title VII's protection against religious discrimination.  See A Piercing Problem - 1st Cir. Ducks the Real Question.  There the Court wrote:
Determining whether a belief is religious is "more often than not a difficult and delicate task," one to which the courts are ill-suited. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981). Fortunately, as the district court noted, there is no need for us to delve into this thorny question in the present case. Even assuming, arguendo, that Cloutier established her prima facie case, the facts here do not support a finding of impermissible religious discrimination.

The opportunities for raising a claim of "veganism discrimination" are probably limited, but the opportunities for individuals to claim religious discrimination under the EEOC definition are not. 29 CFR §1605.1 provides that:
... the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views. ... The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.
The termination of a hospital employee for refusing to take a flu shot is a fascinating area in and of itself. I learned that, when I handled such a case a year ago. It is a classic example where an employer is put in a bind between what is required to comply with a mandate and the impact on its employees.

In order to comply with Joint Commission regulations, many hospitals feel pressured to have mandatory flu shot requirements. A position that seems to be well supported by findings of health organizations. On the other hand, forcing someone to take a vaccine, or have some unpopular accommodation, such as wearing a mask for the entirety of the flu season, is certainly likely to ire a certain set of employees.

Often the law is left to sort it out, and unfortunately the mechanism for doing so is most often a claim of discrimination of some sort with the employer in the middle, paying for it, regardless of how it is ultimately decided.

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Thursday, January 03, 2013

Goodbye to the 112th Congress, Hello the the 88th?

It does not seem that many will shed many tears for the now departed 112th Congress, although I am not sure that any one seems hopeful that the newly formed one will perform any differently.

But 50 years ago today, another Congress was sworn in, one that ultimately created the field of employment law. Given that for the last 37 years, I have been engaged primarily in the defense of employment law suits, on a personal level that's a significant development.

But its importance is obviously much broader than how I ultimately chose to make a living.

On January 3, 1963, the 88th Congress that would pass first the Equal Pay Act, and then a year later the Civil Rights Act of 1964, including its employment law provision, Title VII, convened. 

The Democratic party controlled both houses of Congress and John F. Kennedy was President.  John McCormack of Massachusetts was the Speaker of the House. Mike Mansfield, from Montana was the Senate Majority Leader and Everett Dirksen of Illinois was the Senate Minority Leader.

The two year period of this Congress is rich with historical content without even considering its impact on the employment law world. But it is that aspect that will be the subject of postings here over the coming months.

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