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U.S. Supreme Court invalidates President's appointments to Labor Board

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In a long-awaited decision, the U.S. Supreme Court has held that President Obama’s appointments of members to the National Labor Relations Board (NLRB) were unconstitutional. Rick Warren from our U.S. member firm FordHarrison explains.

Originally posted on the Ius Laboris Knowledge Base: www.globalhrlaw.com

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U.S. Supreme Court invalidates President's appointments to Labor Board

  1. 1.   U.S. Supreme Court invalidates President's appointments to Labor Board Publication Date: 3 July 2014 | Author(s): Rick Warren Member Firm(s): FordHarrison Country: United States In a long-awaited decision, the U.S. Supreme Court has held that President Obama’s appointments of members Block, Griffin, and Flynn to the National Labor Relations Board (NLRB) on January 4, 2012, were unconstitutional. Although the Court broadly interpreted the President’s power to appoint federal officials during a Senate recess, under the Recess Appointments Clause of the Constitution, it held that the recess during which the appointments were made was too short to fall within the Clause. Accordingly, the Court found that the President lacked the authority to make these appointments, and therefore the Board lacked a valid quorum during the time these members served. The NLRB consequently lacked the power to act. Although the positions held by these members have since been filled by validly appointed members, the Court’s decision has potentially far-reaching repercussions as it calls into question hundreds of decisions issued and other actions taken by the Board during the time these invalidly appointed members served. According to a 2010 Supreme Court decision, the NLRB cannot act without a validly appointed quorum. The Court’s decision today means the Board lacked a valid quorum when it issued over 700 decisions, a number of which will have to be reconsidered. Many of the Board’s decisions in 2012 were decided against employers, and some were very high profile. Among these decisions were Costco Wholesale Corp., where the Board struck down an employer’s social media policy, and Banner Health System, where the Board adopted a new approach, holding that an employer commits an unfair labor practice if it asks an employee, who is the subject of an internal investigation, to refrain from discussing the matter during the investigation. This process will likely delay the Board’s momentum in issuing other decisions unfavorable to employers. With a pro-labor majority, however, the Board likely will uphold its earlier decisions that it must reconsider under Noel Canning. For more information see NLRB v. Noel Canning (June 26, 2014). Taken from the Ius Laboris Knowledge Base: www.globalhrlaw.com
  2. 2.     About Ius Laboris Ius Laboris is an alliance of law firms offering employers cross-border employment and pensions law advice. It has 1,300 specialist HR lawyers in over 150 cities and 44 countries. Ius Laboris offers access to the best local HR law experts in one global team with 20% more ranked employment lawyers (Chambers & Partners, November 2013) than any other global HR legal services organisation. Further, Ius Laboris has 50% more recommended lawyers than its nearest rival in a recent survey in PLC's employment law guide. Clients include many household names as well as multinational companies in all sectors ranging from energy, retail and technology to pharmaceuticals. For more information on Ius Laboris, please visit iuslaboris.com.

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