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OMB approves paperwork for revised OFCCP disability and veterans regulations, including new disability self-id form

January 24th, 2014  |  Cynthia L. Hackerott  |  Add a Comment

On January 22, 2014, the Office of Management and Budget (OMB) approved the paperwork requirements for the OFCCP’s final rule that revises the agency’s regulations which implement Section 503 of the Rehabilitation Act of 1973 (Section 503), including the eagerly-awaited finalized version of the new standard “Voluntary Self-Identification of Disability” form. As previously reported in Employment Law Daily, the OMB approved the paperwork requirements for the final rule that revises the OFCCP’s regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) on January 13, 2014. OMB approval of the paperwork requirements is a necessary step for the rules to take legal effect.

Both final rules were published in the Federal Register on September 24, 2013 (78 FR 58614–58679 and 78 FR 58682-58752). The VEVRAA rule revises the OFCCP’s regulations at 41 CFR Part 60-300 (and rescinds the outdated regulations at 41 CFR Part 60-250); the Section 503 rule revises the agency’s regulations in 41 CFR Part 60-741. The revised regulations will require federal contractors to establish a 7 percent utilization goal for workers with disabilities and a variable hiring benchmark for protected veterans as well as new data collection and recordkeeping requirements.

Although federal contractors and subcontractors will be required to comply with Subparts A, B, D, and E of the both new rules by March 24, 2014, the OFCCP has indicated that contractors with existing affirmative action programs (AAPs) on the effective date may wait to comply with the new requirements of Subpart C of both rules as part of their standard AAP review and updating cycle. In other words, contractors that have an AAP in operation (mid-cycle) on March 24 may wait to comply with the new requirements of Subpart C of both rules until their new annual AAP cycle begins. However, contractors must still comply with all existing obligations under the current regulations while they are waiting to comply with the new requirements.

Invitations to self-identify. The final Section 503 rule requires contractors to invite applicants to self-identify as individuals with disabilities (IWDs) at both the pre-offer and post-offer phases of the application process. It also requires that contractors invite their incumbent employees to self-identify as IWDs every five years. All invitations must use the standardized form prescribed by the OFCCP.

The final VEVRAA rule requires that contractors invite applicants to self-identify as protected veterans at both the pre-offer and post-offer phases of the application process. At the pre-offer stage, contractors must extend an invitation to self-identify generally as a “protected veteran.” At the post-offer stage, contractors must extend an invitation to self-identify as to the specific veteran category(ies) that contractors are required to report on in the VETS-100A form. Appendix B of the VEVRAA final rule includes sample invitations to self-identify (for both the pre-offer and post-offer stages) that contractors may use.

Required VEVRAA format/Section 503 form. The OFCCP submitted its proposed paperwork requirements for both rules to the OMB on September 24, 2013. In comments submitted to OMB, many contractors and employer groups expressed concern that the proposed version of the prescribed disability self-identification form could be confusing to workers, failed to completely define the term “disability,” and conflicted with some provisions of the upcoming regulations. OFCCP Branch Chief of Policy Naomi Levin noted in a January 16, 2014 webinar that the finalized version of the form has been revised from the proposed version in light of stakeholder comments.

Contractors can provide the form electronically, advised Senior Labor Department Attorney Jessica Lyn during the webinar, if the electronic form meets certain requirements.  These requirements, which are specified in one of the OFCCP’s FAQs on the rule, are that the e-form must:

  • Display the OMB number and expiration date;
  • Contain the text of the form without alteration;
  • Use a sans-serif font, such as Calibri or Arial; and
  • Use at least 11-pitch for font size (with the exception of the footnote and burden statement, which must be at least 10-pitch in size).

Unlike the requirements of the Section 503 final rule, contractors are not required to use any specific form for the VEVRAA invitations. Nevertheless, contractors that do not use the sample forms provided in Appendix B of the VEVRAA rule must still ensure that the format they use meets the criteria provided in the VEVRAA rule.

The OMB approval of paperwork requirements for both rules will expire on January 31, 2017.

The supporting statement, supplementary document, and public comments regarding the VEVRAA paperwork requirements are available at: http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201307-1250-002.

The supporting statement, supplementary document, and public comments regarding the Section 503 paperwork requirements are available at: http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201307-1250-001.

*Update: As of January 27, 2014, the OFCCP has the form posted on its website at: http://www.dol.gov/ofccp/regs/compliance/sec503/Voluntary_Self-Identification_of_Disability_CC-305_SD_Edit1.24.14.pdf.

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Harassment based on nonconformance with gender stereotypes

January 23rd, 2014  |  Kathy Kapusta  |  Add a Comment

We all know the mantra: “It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Although it does not protect against bias based on sexual orientation, several courts have held that this language prohibits discrimination against an employee because the employee does not conform to traditional gender norms. For example, assertive behavior on the part of a woman might be judged more critically because aggressive conduct is commonly viewed as a masculine characteristic or a female might be penalized for her “unladylike” language.

Two recent court decisions should serve as reminders that while sexual orientation is not a protected class under Title VII, discrimination on the basis of an employee’s failure to conform to expected gender stereotypes may land an employer in court.

Manly-men don’t play golf

In the first case, a Ford assembly line employee did not fit in with the stereotypical male worker on a plant assembly line. Unlike other workers, he did not drink, do drugs, or swear around women. In addition to being passionate about golf — a sport one group leader repeatedly called a “sissy’s game” — he did not engage in activities traditionally considered to be “manly” like hunting or fishing. And, he wore clothes that looked “like what girls would wear.”

Harassment. The employee contended that he faced harassment, discrimination, and ultimately termination because his coworkers perceived that he failed to conform to the male stereotype.  They told him that he “did the queerest things” and asked why he couldn’t “just work and be like normal people.” Beginning in early 2010, the employee alleged that he was the victim of coworker sexual harassment. For instance, his group leader purportedly sent him two text messages. The first stated: “Found the candy you like for Valentines. But can’t remember if you like white or dark chocolate.” A picture of two chocolate cake pops shaped like penises was attached. The second contained a graphic depicting Elmer Fudd sodomizing Bugs Bunny. Another group leader gave him a five gallon container of Vaseline, telling him “Cappy you need this Vaseline for your ass since you take cock there all the time.”

On another occasion, his coworkers allegedly put grease and dirt on his chair; when he sat in the mixture and stained his pants, they kept track of votes on the substance’s identity with a whiteboard delineating the options of “dirt, grease or cum.” In addition, one of the group leaders would walk past the employee simulating “sucking a cock.” On another occasion, when denied an emergency bathroom break, he urinated in his pants. His group leader then told other workers that the employee “was like a little baby” and “pissed [his] pants.” Sometime after this incident, he was placed on a “no work available” list. He was ultimately terminated in December 2010 when his supervisor noticed that he had a black bag with a bottle full of urine. The employee had carried it into the plant because he urinated during his commute and did not want it to freeze.

Hostile work environment because of sex. The employee sued Ford and the two group leaders alleging that they harassed and discriminated against him on the basis of sex, retaliated against him by firing him, and caused him emotional distress. Noting that a plaintiff hoping to succeed on a claim of sex stereotyping must show that he fails to act and/or identify with his or her gender, a federal district court in Ohio pointed out that the Sixth Circuit has recognized that this theory of sex stereotyping will succeed “where gender non-conformance is demonstrable through the plaintiff’s appearance or behavior.”

Here, there was evidence supporting the conclusion that both his appearance and behavior put him outside of a “manly-man stereotype,” the norm in the world of Ford’s Ohio assembly plant production line. Not only did he wear feminine clothing, while dressed in his work apron, he pretended to be pregnant and to rock a fake baby. He also contended that his past career in management and his practice of keeping detailed notes about his activities at work also comprised behavior that placed him outside of the expected male norm at the Ford plant. He further asserted that the group leaders and other coworkers harassed him repeatedly, called him “queer,” and inundated him with sexual comments, gestures, and pranks.

Though Ford argued that the majority of the alleged behavior was “indisputably asexual” and “objectively harmless,” the court disagreed. When taken as a whole, the evidence could support a finding that the defendants’ actions created a hostile work environment. The vulgar acts mimed toward the employee; threats made while he faced harassment about needing Vaseline for anal sex; crude text messages; catalogues of women’s clothing and lingerie left for him; and a sexually-explicit wooden box that could be interpreted to suggest he should give (or gave) fellatio in the area near his workspace all could support the conclusion that the work environment was hostile or abusive.

Pretext. Ford claimed that it had a legitimate reason for firing the employee: he brought the bottle of urine into the plant and placed it in a barrel of gloves and he had a company owned keyboard in his locker. The employee, however, claimed that he properly disposed of the urine in the bathroom. Moreover, there was evidence that the gloves, which were supposedly soaked in urine, were never tested. In addition, while there was no evidence as to whether the gloves were intended to be recycled or thrown out, there was other garbage in the barrel, including food. Nor, the court pointed out, was there any rule against bringing a bottle of urine into the workplace or disposing of it in the bathroom. Finally, there was evidence that another employee who had urinated on company property was suspended, not discharged. As to the keyboard, there was no evidence that it was actually company-owned. Observing that the employee presented sufficient evidence of pretext, the court found that the defendants were not entitled to summary judgment as to this claim.

Liability. The court also rejected Ford’s assertion that it was not responsible for the coworkers’ harassment because it had no notice of their conduct. Here, there was evidence that the employee reported the conduct on more than one occasion. Not only did he tell his supervisor that he was scared of his coworkers’ actions, he also told him his coworkers were subjecting him to sexual innuendo, ridicule, and harassment. Thus, the employee was allowed to proceed to trial on his claim that he was discriminated against because he did not conform to (or was perceived as not conforming to) the stereotypical expectations and images of masculinity. Ford was also denied its motion for summary judgment on the employee’s retaliation claim related to sex discrimination as well as his intentional infliction of emotional distress claim.

How women should look and act

Three weeks later, a federal district court in Pennsylvania found that an openly gay female officer, who alleged that her female supervisor harassed her because her outward exhibition of sexual conduct did not conform to how a woman should look in the workplace or act in her private life, stated a plausible claim of a sexually hostile work environment.

Harassment. The officer began working for the Philadelphia Prison System (PPS) in July 2001, eventually rising to the rank of correctional sergeant. She began to receive harassing comments from her female supervisor, allegedly focusing on her perceived lack of femininity, outward signs that she had engaged in sexual conduct, and her sexual orientation. For instance, on one occasion, the supervisor thought the employee had recently had sex due to her disheveled hair and a mark on her neck, which the supervisor believed was a “passion mark.” The supervisor then shared her observations with other supervisors and coworkers, pointing out her “passion mark” to a captain and loudly asking if her hair was “messed up” because she “was getting some before she came to work.”

Several weeks later, the supervisor began to scream at her in front of coworkers and other supervisors. During the rant, she referenced the officer’s sexual preferences in a threatening manner. The supervisor also encouraged coworkers and subordinates to ignore and disobey the employee’s orders and gave her a negative performance review. When she complained to a superior, she was told “if you don’t like it, you can leave.”

Although the employee filed an EEOC charge alleging gender bias and a hostile work environment, PPS investigated and found the employee’s allegations against her supervisor to be unfounded. The supervisor then increased her harassment, allegedly telling the employee that she “could be messed with and nothing will happen.” The employee was subsequently transferred to a different facility with poorer conditions, fewer responsibilities, and fewer hours.

Non-conformance with gender stereotype. Denying dismissal of the employee’s HWE claim, the court first rejected the employer’s contention that she failed to show the alleged harassment was based on sex. Although sexual orientation is not a protected class under Title VII, discrimination on the basis of an employee’s failure to conform to expected gender stereotypes is sex discrimination, the court stated. Here, the employee sufficiently alleged that her supervisor discriminated against her on the basis of her failure to conform to expected gender stereotypes.

Specifically, the supervisor’s alleged harassment focused on her appearance — the signs of sexual conduct that the supervisor believed she exhibited. Thus, while the supervisor made harassing comments throughout 2011 and 2012 to other supervisors and coworkers, she did not make similar comments about women who conformed to her expectations of a female. Because the employee contended she was harassed due to her outwardly sexual conduct, which did not meet her supervisor’s expectation of how a woman should look in the workplace or act in her private life, she sufficiently alleged that she suffered discrimination based on sex. The mere possibility that the harassment was instead motivated by her sexual orientation did not warrant dismissal at this stage of the litigation, the court stated.

State laws. While sexual orientation is not a protected class under Title VII, sexual harassment is not acceptable conduct. Workplace harassment can lead to financial liability for an employer, cause loss of productivity in the workplace, and lead to poor employee morale. Therefore, employers should do everything possible to prevent harassment from occurring. It is also important to keep in mind that many states have either included a prohibition on employment discrimination because of sexual orientation in their fair employment practices laws or have passed separate laws. Some state laws cover employers with as few as one employee. In addition, state tort actions may also be used to redress adverse action based on sexual orientation.

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Court approves settlement in unpaid interns’ wage suit against modeling agency

January 21st, 2014  |  Lisa Milam-Perez  |  1 Comment

By Lisa Milam-Perez, J.D.

In a noteworthy development on the intern wage suits front, a federal district court in New York has granted preliminary approval to a settlement reached in a suit brought by unpaid interns of a premier modeling agency who contended they should have been paid for their work as statutory employees under the FLSA and state law. The agency will dole out $450,000 to resolve the interns’ wage claims, marking the second significant recovery by unpaid interns since the wage-hour litigation trend took off two years ago. (Last June, a New York state judge gave the final sign-off on a $250,000 settlement resolving a suit brought by unpaid interns of PBS’ Charlie Rose show.)

A $50 million class action. In what originated as a $50 million class action against Elite Model Management Corp., the interns alleged willful violations of the minimum wage and overtime requirements of the FLSA and New York Labor Law. They also asserted a spread-of-hours claim under state law and contended they were entitled to incidental expenses they incurred in carrying out their duties. “Elite has for years boosted its bottom line on the backs of young interns, who while anxious to build their resumes, are too afraid to ask for compensation and/or are unaware of the wage laws’ requirements,” according to the amended complaint. “The self-proclaimed ‘world’s most prestigious’ modeling agency knows better, however.”

The interns asserted that Elite deliberately misclassified them as interns, or “trainees” in FLSA parlance, exempt from statutory wage requirements, in order to avoid paying them for their considerable efforts. The named plaintiff, who was hired to assist in preparing for and participating in New York’s fall 2010 “Fashion Week,” organized model portfolios and office files; prepared modeling books; picked up models from their homes or hotels and escorted them to and from bookings or on shopping errands to buy clothes; organized clothes, shoes and accessories for the models’ use; cleaned and organized office space, including wiping down closet drawers; and ran errands for paid staff, buying them coffee and picking up printing supplies. Such an “internship,” the complaint asserted, “fits the classic definition of what a paid employee does.”

The casting agent who oversaw the interns made it clear they were “indispensable” to the agency’s business and that Elite expected them to be available 24-7 to perform their assigned duties. As such, they worked in excess of 40 hours a week and more than 10 hours a day, and contended they were expected to do “productive work” every hour they were on the job. According to the complaint, Elite ramped up its internship program ahead of Fashion Week, commensurate with the agency’s increased need for their services. “Without the free labor of its interns,” the complaint asserted, “Elite would have been forced to do what every other reputable employer in this country does: pay workers an honest day’s wage for an honest day’s work.”

In fact, “Elite is so stingy,” the complaint charged, “that it doesn’t even reimburse its interns for their out-of-pocket expenses including cabs and subway fare spent taking Elite’s models to their modeling assignments. Thus, not only does Elite expect its unpaid interns to work for free, it expects its interns to cover Elite’s incidental operating expenses.”

Asserting that her fellow interns suffered a similar fate, the named plaintiff brought putative class and collective claims on their behalf as well, seeking damages of at least $50 million for unpaid wages, overtime and benefits. She also sought punitive damages and injunctive relief enjoining Elite from continuing the practice of misclassifying its interns as trainees.

Settlement approved. Pursuant to the settlement, Elite agreed to pay a maximum settlement amount of $450,000, which covers payments to class members, administration costs, service awards, and attorneys’ fees and expenses. The settlement provides for a NYLL class of individuals who served as unpaid interns for Elite (or an Elite subsidiary) in New York, and a second FLSA class comprised of all other individuals who served as unpaid interns for Elite or any Elite subsidiary in the country between February 2010 and the date of preliminary approval of the settlement. There are approximately 123 class members. The payout for each individual claimant will be based on the number of weeks worked, based on a minimum of four weeks, up to a maximum of 10 weeks (and a maximum individual recovery of $1,751.61). In exchange, the interns must release all related claims against the agency. Elite denied the complaint allegations and admitted no liability.

The parties had disputed whether the unpaid interns were entitled to compensation under the FLSA and NYLL, the number of hours they worked, and the amount they would have been entitled to receive absent the settlement. Finding the settlement constituted a compromise of a disputed claim, that it was fundamentally fair, adequate, “within the range of possible final settlement approval,” and the result of extensive, arm’s length negotiations, the court granted preliminary approval. A final approval hearing is scheduled for May 1, 2014.

All eyes on Second Circuit. New York is the epicenter of these intern wage suits, and the Second Circuit is poised to consider two such cases handed down by federal judges in the state. The appeals court has been asked to resolve an intra-district conflict over the standard for courts to use in deciding whether unpaid interns are statutory employees. One federal judge held that production interns for Fox Searchlight Pictures were statutory employees, not “trainees.” Another judge in the circuit ruled to the contrary in a suit against Hearst Corp. The judge in that case applied a “totality of the circumstances” approach to the question of employee status, including an analysis of which party was the primary beneficiary of the relationship. Both decisions have been certified for immediate appeal. Several more intern suits have been filed in the district since; currently there are more than a dozen pending cases in New York alone.

Given that these intern suits are invariably brought as class actions, and by particularly sympathetic plaintiffs—typically college students and recent graduates desperate for a leg up—employers throughout the country should be watching the Second Circuit closely, and scrutinizing their own internship programs to ensure they are legally compliant.

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It’s time to reevaluate defense strategies against employment discrimination claims

January 16th, 2014  |  Ron Miller  |  1 Comment

Three decisions in December from various federal courts of appeal strongly suggest that it is time for employers to reevaluate their defense strategies against employment discrimination claims. First, the Ninth Circuit determined that an employer cannot completely shield itself from judicial scrutiny by including in an arbitration agreement a clause eliminating all federal court review of arbitration awards. The First Circuit followed by ruling that a significant disparity between a district court’s award of attorneys’ fees and costs and the damages obtained from a jury award did not constitute an abuse of discretion. Finally, the Seventh Circuit created a split with its sister circuits by concluding that the EEOC’s failure to conciliate was not an affirmative defense to the merits of a discrimination suit.

Judicial review of arbitration awards. Addressing a question of first impression in In Re: Wal-Mart Wage and Hour Employment Practices Litigation, an appeal arising out of a protracted dispute over attorneys’ fees awarded in multidistrict litigation against Wal-Mart over alleged wage and hour violations, the Ninth Circuit ruled that a non-appealability clause in an arbitration agreement that eliminated all federal court review of arbitration awards, including review under Sec. 10 of the Federal Arbitration Act (FAA), was not enforceable. In so ruling, the appeals court affirmed the district court’s confirmation of an arbitration award allocating $28 million in attorneys’ fees among plaintiffs’ counsel.

Proportional attorney fee award. Next, in Diaz v Jiten Hotel Management, Inc, the First Circuit rejected an employer’s contention that an award of attorney fees “needs to be” proportional to the relief obtained. The appeals court concluded that an award of attorney’s fees and costs of nearly $105,000 for a suit obtaining a damages award of only $7,650 was not so disproportionate as to constitute an abuse of discretion by a district court. Because it found no basis in Massachusetts law for concluding that disproportionality alone supported vacating the district court’s conscientious exercise of its discretion, the appeals court declined to disturb its award of fees and costs.

Failure to conciliate defense. Finally, in EEOC v Mach Mining, LLC, the Seventh Circuit concluded the EEOC’s alleged failure to engage in good-faith conciliation before filing suit did not warrant dismissal of a discrimination case against an employer. The appeals court concluded that the language of Title VII, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convinced it that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. Further, the court explained that finding in Title VII an implied failure-to-conciliate defense would add to that statute an unwarranted mechanism by which employers could avoid liability for unlawful discrimination.

Develop a plan. Dealing with an employment discrimination complaint is an event for which most employers should be prepared. It requires a systematic approach and entails development of a strategy. Employers should know what to expect and how to respond. The following considerations should be part of the employer’s plan:

• Know what laws are involved, the basic facts, and what the organization is accused of.
• If dealing with the EEOC, it may be wise to bring in counsel if the charge is a pattern or practice charge or a high level executive is accused. Legal counsel can also play a valuable role as a resource to be consulted as needed throughout your investigation and in reviewing your position statement.
• Charges should be thoroughly investigated immediately; be aware of possible defenses and make sure you preserve them.
• Evaluate your position and decide on a course of action. Consider settlement if your investigation reveals the possibility of a violation.

Employers should continually monitor all of their policies, procedures, and personnel with the goal of providing equal opportunity to all. That starts with making certain the organization has adequate complaint procedures at all levels and educating employees, supervisors, and managers about what steps to take if faced with alleged discrimination.

Finally, as part of a litigation strategy, remember that not all defense tactics are going to be successful. Each of the cases cited above conceivably could be read as the court reinforcing its focus on the merits of a dispute in the face of a defensive posture designed to avoid addressing the merits. This suggests that employers’ best strategy may be to proactively enforce their own antidiscrimination policies and practices — before the courts get their chance to weigh in.

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Supreme Court hears oral argument in NLRB v Noel Canning

January 14th, 2014  |  Lisa Milam-Perez  |  Add a Comment

The U.S. Supreme Court heard oral argument Monday in the eagerly anticipated NLRB v. Noel Canning (Dkt No 12-1281) case, a labor law dispute at its core, but one with much broader ramifications for the scope of presidential authority under the Constitution. At issue is whether President Barack Obama’s three polarizing recess appointments to the NLRB in January 2012 passed muster under the Recess Appointments Clause. Parsing the questions presented by the Justices in today’s deliberations, most High Court observers were poised to predict the ultimate answer would be a resounding “no.”

A labor dispute; a constitutional quandary. The road to the Supreme Court began when Noel Canning, a small beverage company, petitioned for review of an NLRB decision holding that the employer acted unlawfully when it refused to execute a collective bargaining agreement with the Teamsters union. Noel Canning challenged the Board’s order on constitutional grounds, contending the agency had no authority to issue the ruling because it lacked a valid quorum.

On the day the NLRB issued its holding, it purportedly had five members. But Noel Canning contended that three of those members, who were appointed by the President as ostensible recess appointments on January 4, 2012, were not validly appointed because the Senate was not actually in recess. The Senate was operating at that time pursuant to a unanimous consent agreement which provided that it would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012, but that “no business would be conducted” during those sessions.

Siding with the employer, the D.C. Circuit held that the Board did not have a quorum when it issued its order because the recess appointments were unlawful. (The Third and Fourth Circuits have since reached similar conclusions.) The appeals court found the “recess” in the Recess Appointments Clause referred to the period between sessions when the Senate is, by definition, not in session and thus is unavailable to receive and act upon nominations from the President. Finding the “intrasession” interpretation of “recess” unpersuasive, the court disagreed with an Eleventh Circuit ruling to the contrary and rejected the Board’s contention that “recess” means breaks in the Senate’s business when it is otherwise in a continuing session. History supported the employer’s interpretation that “recess” is limited to intersession recesses, the D.C. Circuit determined—notwithstanding the centuries-long history of “intrasession” appointments by presidents of both parties.

The federal government filed a petition asking the Supreme Court to overturn the decision; 45 Republican senators also urged the Court to take the case and affirm. Noel Canning did not oppose a grant of certiorari.

Questions presented. At issue before the High Court were three questions:

(1) Whether the President may use the recess-appointment power during intrasession Senate recesses or whether the power is limited to intersession recesses;
(2) Whether the President’s recess-appointment power is exercisable for vacancies that exist during a recess or whether the power is limited to vacancies that first arose during that recess (Noel Canning had also urged that the NLRB vacancies purportedly filled by the President did not “happen during the Recess of the Senate,” as required for recess appointments under the Constitution)
(3) Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma session.

The last question had not been addressed by the D.C. Circuit; however, this point of law could appeal to the High Court if it seeks to affirm the holding on narrower grounds and eschew the broader constitutional quandary. Notably, while both Democratic and Republican presidents have made “intrasession” recess appointments, only President Obama has appointed nominees during pro forma sessions.

A big case, even by Supreme Court standards. Reflecting the significance of the issues before the Court, Senate Republican Leader Mitch McConnell and 44 of his Senate Republican colleagues requested and were granted permission to participate in oral argument as amici curiae in the case. Miguel Estrada, a partner in the Washington, D.C., office of Gibson, Dunn & Crutcher (and former assistant to the solicitor general) argued on behalf of the Senators. Moreover, the U.S. Chamber of Commerce’s National Chamber Litigation Center (NCLC) filed a brief on behalf of Noel Canning, a member of the trade group, marking the first time that NCLC attorneys directly represented a Chamber member company before the High Court. Many other organizations weighed in with amici briefs as well, including unions, scholars, legal foundations, justice groups, and employers.

The case the parties grappled with was much bigger than the little labor dispute that spawned it. While the Supreme Court’s decision in Noel Canning could mean that all of the rulings handed down by the NLRB since those ill-fated January 2012 recess appointments are invalid — a significant development for the parties in those cases and for labor practitioners — Monday’s argument focused more broadly on the constitutional questions at stake.

The NLRB’s case. Opening his argument on behalf of the NLRB, Donald B. Verrilli, Jr., Solicitor General, urged that to invalidate the recess appointments would “repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.” Further, he warned, “going forward, it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the Framers established.”

Justice Kagan suggested the matter of recess appointments was, in the modern era, a political one rather than a genuine safeguard to ensure the executive branch can function while Congress is away. Presidents of both parties “have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved.”

Responding, Verrilli agreed that “it may be true as a matter of raw power that the Senate has the ability to sit on nominations for months and years at a time, but that is 100 miles from what the Framers would have expected.” But that was a different matter, the other Justices noted, than whether the Senate was available to consider appointments, which was the crux of the case. The Justices quickly narrowed the discussion, questioning Verrilli on how the Constitutional terms “recess,” “vacancy,” and “may happen” are defined, in the government’s view, and whether there is a “recess” within that meaning during a pro forma session.

As for his “status quo” argument that the centuries-long practice of presidential recess appointments warranted deference, notwithstanding what the Constitution actually says on the matter, the Justices appeared skeptical.

Of more immediate concern to the labor law community, Verrilli noted “there are many dozens of board decisions and, perhaps, many hundreds of board decisions that are under a cloud as a result of the D.C. Circuit’s ruling in this case. And so, the board will have a considerable amount of work to do … if the D.C. Circuit’s decisions were to be affirmed.”

Justice Scalia, however, suggested the government would likely rely on the “de facto officer” doctrine, with success. “You don’t really think we’re going to go back and rip out every decision made,” Scalia said.

“I would certainly hope not, Your Honor,” Verrilli replied, “but it certainly casts a serious cloud over the legitimacy of all of those actions.”

Noel Canning’s position. Pleading the employer’s case, Noel J. Francisco of Jones Day pointed to the Advice and Consent Clause. He cautioned that the government’s position “would eviscerate” the check on presidential power embodied in that provision — “creating a unilateral appointment power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the President.” Responding to Justice Ginsburg’s contention that his alternate stance would “destroy the recess clause,” Francisco argued that “the recess appointment power is a contingent one. It arises only when the Senate chooses to trigger it by ending its session and beginning its recess. So the Senate always has the power to prevent recess appointments.”

Presented too with the question of what to do with the long historical record of recess appointments, Francisco questioned the premise that such “an unbroken and never contested practice” existed. At any rate, he argued, “The political branches of the government have no authority to give or take away the structural protections of the Constitution. They don’t exist to protect the Senate from the President or the President from the Senate. These are liberty-protecting provisions that protect the people from the government as a whole. So if the Constitution is quite clear as to what those structural protections are, but the political branches, assuming for the sake of argument, have conspired to deplete them, that is illegitimate, and it should be rejected by this Court.”

As a practical matter, Francisco noted that while the recess appointments clause may have been essential in the historical context, lest the Senate be subject to a recall in emergency sessions every time the President needed to confirm a nominee, “today, the Senators can get back to Washington, D.C. very easily …. They’re perfectly willing to be hailed back if necessary.”

As for the potentially dire consequences for the NLRB were the High Court to uphold the D.C. Circuit, Francisco downplayed the impact, noting that “going forward the government can solve the problem through agency ratification of past decisions. Going backward, there are a variety of doctrines that would limit anybody’s ability to actually challenge those past actions, including, for example, the APA’s 6-year statute of limitations on challenging final agency action, various finality rules that would prohibit a party from raising an issue that they could have but failed to raise in an earlier proceeding, and various justiciability doctrines, like mootness, standing, and, Your Honor, the de facto officer doctrine, at least outside of the context of direct appeal.”

The Senate’s stake. From the vantage point of the Republican senators, “this is all about how the Senate chooses to arrange its affairs under the Rules of Proceedings Act,” said Estrada, arguing on their behalf. He reiterated: “the Senate by the design of the Constitution, the Appointment Clause, the primary method of appointment, has an absolute veto over nominations.” As for the practical need for recess appointments, Estrada observed as well that, with the nation having moved into the modern age, “the rules of the Senate tend to provide for the Senate to be available at the drop of a hat.”

Estrada also downplayed the drastic consequences envisioned by the government. “For all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles—there is no parade, and there is no horrible. The only thing that will happen is that the President, heaven help us, will be forced to comply with the advice and consent that the Appointments Clause actually calls for.”

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