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Federal district court in DC rules Bank of America consented to OFCCP desk audit, probable cause existed for on-site review

July 9th, 2014  |  Cynthia L. Hackerott  |  Add a Comment

Adopting the bulk of a magistrate’s recommendations, the federal district court for the District of Columbia has ruled that substantial evidence supported a DOL Administrative Review Board (ARB) decision — finding that Bank of America (BOA) consented to the desk audit portion of an OFCCP compliance review and that there was specific evidence of a violation of Executive Order (EO) 11246 to support the OFCCP’s decision to conduct an on-site review. The court declined, however, to adopt the magistrate’s determination to the extent that she found that a desk audit was equivalent to an administrative subpoena for the purposes of Fourth Amendment analysis and that the OFCCP did not apply neutral administrative criteria for selecting a certain BOA branch location for a compliance review (Bank of Am v Solis, July 2, 2014, Sullivan, E).

Background. In 2004, the OFCCP conducted a desk audit of a BOA facility in Charlotte, North Carolina. Via the itemized listing that accompanies every audit scheduling letter, the OFCCP requested that the contractor provide the agency with its affirmative action programs (AAPs) and specified supporting documents and records, and BOA complied. By letter dated September 23, 2004, the OFCCP informed the bank that the data it submitted revealed indicators of a need for further in-depth investigation of the bank’s compensation practices. Included in this letter were tables indicating that BOA paid men more than women and non-minorities more than minorities in several job classifications. The letter requested that BOA submit additional data, and the bank complied, submitting the requested data as well as its explanation for the differences in employee pay at the facility.

In November 2004, the OFCCP performed a statistical regression analysis of the data it received during the desk audit and concluded that the data revealed indicators of salary disparities against women. Based on this analysis, the agency decided that an on-site investigation was necessary. Thus, in March 2005, the OFCCP informed BOA that it wanted to come onsite to interview certain employees and review certain categories of documents. After BOA refused to allow the OFCCP to conduct the on-site review, the OFCCP filed an administrative complaint alleging that BOA violated EO 11246 and its implementing regulations.

Administrative rulings. On May 22, 2007, the ALJ issued a “Recommended Order Enforcing On-Site Review” (ALJ Case No 2006-OFC-003) and on September 30, 2009, the ARB issued its final decision and order (ARB No 07-090).

Stating that it is “well settled” that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent, the ARB noted that during the desk audit stage, BOA turned over its AAP and supporting documents to the OFCCP knowingly and voluntarily, and the OFCCP did not coerce or mislead the bank to obtain its consent. Thus, the ALJ concluded that BOA consented to the first part of the compliance review, including selection of the branch for review. The ARB found that a preponderance of the evidence supported the ALJ’s determination. Further, the ARB refused to adopt BOA’s assertion that the agency’s compliance review scheduling letter was coercive or misrepresented the OFCCP’s authority, and thereby, negated any voluntary consent.

Since it was clear that BOA did not consent to the agency’s proposed on-site visit, the ARB next considered whether the proposed visit conformed to Fourth Amendment requirements. The OFCCP argued before the ALJ that the results of the November 2004 statistical regression analysis provided sufficient evidence of an existing violation. However, BOA’s expert demonstrated “conclusively” to the ALJ that the analysis was too flawed to support any conclusions about the bank’s personnel practices.

However, the ALJ noted that there is no requirement that the OFCCP base its decision to seek an on-site review on a regression analysis. That the regression analysis lacked probative value did not mean that the OFCCP lacked a reasonable basis to conduct such an on-site review. The ALJ found such basis in the agency’s September 23, 2004 letter to BOA, which contained tables that indicated that, for certain groups of employees, the average salaries of males were approximately 9 to 23 percent higher than those of females, and that the average salaries of non-minorities were approximately 5 to 23 percent higher than those of minorities. Indeed, the ALJ commented that “given this raw data, one wonders why OFCCP thought it needed a regression analysis to justify an on-site review.”

Like the ALJ, the ARB found that there was no evidence in the record disputing this data. Thus, the ARB held that the proposed on-site records inspection and employee interviews would not violate the Fourth Amendment, and directed BOA to give the OFCCP the requested access.

Magistrate’s recommendation. On October 26, 2009, the bank commenced the present action in the DC federal district court, petitioning the court to “hold unlawful and set aside” the final order of the ARB. In turn, the OFCCP moved for summary judgment. On December 13, 2011, the magistrate issued her report and recommended that the court: (1) deny BOA’s petition to set aside the ARB’s final order; and (2) grant the OFCCP’s motion for summary judgment (95 EPD ¶44,370).

Court’s ruling. The district court’s decision addressed the objections to the magistrate’s recommendations made by both parties. BOA objected to the magistrate’s findings generally, and made the specific objections to the following three findings: (1) that the OFCCP desk audit was equivalent to an administrative subpoena; (2) that the bank consented to the desk audit; and (3) that there was specific evidence of a violation of EO 11246 sufficient to support the constitutionality of an on-site review. The OFCCP only had one objection — that the magistrate should not have reached the conclusion that the OFCCP did not provide sufficient evidence that it applied a neutral administrative plan in initially selecting the bank facility at issue for a compliance review.

Fourth Amendment. The court explained that different standards apply to administrative warrants and subpoenas under the Fourth Amendment. For an administrative warrant to issue, the government must have either specific evidence of an existing violation or the ability to show that reasonable legislative or administrative standards such as a general administrative plan derived from neutral sources justify the warrant (i.e. a showing of “probable cause”).  A lower standard applies to administrative subpoenas; in order to be enforceable; the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.

Initial selection. In this case, BOA challenged two stages of the compliance review process: (1) its initial selection for audit, and (2) the OFCCP’s request to conduct an on-site review. Ultimately, both the ARB and the magistrate determined that whether the bank’s initial selection complied with the Fourth Amendment was immaterial because it had consented to the desk audit.

Of note, the magistrate concluded that the record showed the OFCCP did not comply with the standard set forth in the DC district court’s 2000 decision in Beverly Enterprises v Herman (79 EPD ¶40,258) regarding the initial selection of BOA for review. Beverly requires that for such a selection to be valid, it must be made pursuant to a neutral administrative plan. Although the record showed that BOA was not singled out for a compliance review, the OFCCP failed to document whether that it actually applied its neutral administrative plan (the Equal Employment Data System or EEDS which generates a random list of contractors) in a neutral manner with regard to the selection at issue, the magistrate found.

Voluntary consent. However, the OFCCP’s failure to meet the Beverly standard did not matter here because the magistrate determined, and the district court agreed, that BOA consented to the desk audit. An administrative search conducted without probable cause is nonetheless valid if conducted pursuant to voluntary, contemporaneous consent, the court noted. Observing that BOA “is a sophisticated financial institution that is not new to the compliance review process” and not a novice “when it comes to challenging the OFCCP’s efforts to complete compliance reviews,” the court found the facts presented belied the bank’s contention that its consent was anything but voluntary.

The audit scheduling letter was not coercive in nature, the court found. The letter provided basic information about the stages of a compliance review and cited to the relevant statutory authority, and it was not suffused with threats to induce compliance. Moreover, although BOA did make inquiries into whether its facility had been selected as a result of a neutral administrative plan and not the result of the unfettered discretion of an officer in the field, the bank continued to make subsequent submissions of documents in response to the OFCCP’s requests.

Alternate ground for desk audit validity. As an alternative ground for finding that the desk audit was valid under the Fourth Amendment, the magistrate determined that the desk audit was equivalent to an administrative subpoena, and that the OFCCP complied with the administrative subpoena standard in the way it conducted the desk audit. The court determined that it did not need to address BOA’s objection regarding this alternative finding because the court adopted the magistrate’s conclusion that the bank consented to the desk audit.

On-site review. While the bank had consented to the desk audit portion of the compliance review, that consent was withdrawn for the on-site portion of the review. Therefore, as explained above, probable cause was required to justify an on-site review under the Fourth Amendment. Agreeing with the magistrate, the court determined that the ARB’s final order, finding there was specific evidence of an existing violation of EO 11246 – i.e. probable cause – to justify an on-site review, was supported by substantial evidence. Even though the OFCCP asserted in the administrative proceedings that the on-site review was justified based on its regression analysis, which was later found to be unreliable, the ALJ and ARB reached the same conclusion (that the on-site review was justified) based on the results from the desk audit, to which BOA consented. Specifically, the ALJ and the ARB found that the raw desk audit data set that was captured in the September 23, 2004, letter (as detailed above) provided the likelihood of specific evidence of an existing violation regarding the BOA facility under audit.

Regardless of whether the OFCCP relied on the raw desk audit data or on a flawed regression analysis, the court found that the pay disparities identified in the raw data were sufficient to provide the agency with a reasonable suspicion of a violation. As such, the court affirmed the portion of magistrate’s recommendation finding that there was specific evidence of an existing violation of EO 11246 to justify the OFCCP’s proposed on-site review.

Neutral administrative plan. The OFCCP argued, and the court agreed, that the magistrate should not have reached the conclusion that the OFCCP did not provide sufficient evidence that it applied a neutral administrative plan in initially selecting the BOA facility for a compliance review because that conclusion exceeded the scope of the court’s review. The ARB determined that it need not consider whether the OFCCP selected the bank facility at issue for compliance review in accordance with a neutral administrative plan because BOA consented to the desk audit; thus, because the magistrate’s findings on this issue were outside the scope of its review, the court did not adopt them.

Accordingly, the court granted the OFCCP’s motion for summary judgment and denied BOA’s motion to set aside the ARB’s order.

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How do your workplace policies stand up against state weapons laws?

July 6th, 2014  |  Joy Waltemath  |  Add a Comment

By Joy P. Waltemath, J.D.

If it hasn’t already, chances are your organization will, sooner or later, confront the issue of employees carrying concealed weapons at work and, depending on the states in which you do business, you’ll need to prepare your organization for laws addressing weapons in vehicles, self-defense, and “stand your ground,” and determine how those laws intersect with your employment policies.

Non-escalation policy upheld

In what appears to be one of the first of these cases to reach the federal appeals courts, last  month the Sixth Circuit upheld Walgreen’s decision to force a pharmacist to resign for violating its non-escalation policy after he shot at armed robbers while on duty. Even though the pharmacist was licensed to carry under state law, the Michigan licensing statute did not prohibit Walgreen’s from preventing its employee from carrying a concealed pistol on the job. Neither the conceal and carry law, nor the state’s Self-Defense Act, nor any other law cited by the pharmacist provided the basis for a public policy exception to his at-will employment (Hoven v Walgreen Co, June 2, 2014, Moore, K).

Shootout with no injuries

A full-time pharmacist with Walgreen’s since 2006, the employee had experienced an armed robbery at work in 2007. After Walgreen’s refused his request that it install a panic button or other security system, he obtained a Michigan license to carry a concealed weapon, bought a gun, and began carrying it to work hidden in his pocket. Several years later, gun-wielding robbers entered the store where the employee was working. When he tried to dial 911, one of the gunmen jumped over the counter and pointed a gun at him. The employee backed away, drew his concealed weapon, and fired it multiple times; no one was shot or injured. Eight days later Walgreen’s told him he had violated its non-escalation policy and gave him the choice of resigning or being fired. He resigned.

Sources for public policy?

Filing suit, the employee alleged that he was fired in violation of Michigan public policy for “lawfully exercising his right of self-defense, the defense of others, and to carry a concealed weapon.” These public policies allegedly were expressed in the Second Amendment of the U.S. Constitution; Article I, Sec. 6 of the Michigan Constitution; the Michigan Criminal Jury Instructions 2d 7.15; and several state statutes (Michigan Compiled Laws Secs. 780.951, 780.971, 750.227, and 28.421).

Look first to state’s public policy exceptions

On appeal (the district court granted Walgreen’s judgment on the pleadings), the Sixth Circuit noted that Michigan courts have not yet considered a claim for violation of public policy involving the rights asserted here. Accordingly, it considered whether the pharmacist was terminated for exercising a right conferred by a well-established legislative enactment and separately analyzed each of the potential sources of public policy he identified. The court quickly dispensed with his assertions that the federal or state constitutions, or criminal jury trial instructions, could be the source of a claim for public policy wrongful discharge.

Nor did the Michigan Self-Defense Act or related provisions support the employee’s claim because, although they related to self-defense, they did not “confer” a general right to engage in self-defense but rather to present a criminal defense. Similarly, the complex regime for licensing concealed weapons was not a source of public policy that could support this wrongful discharge claim because the statute he specifically cited said the right to carry a concealed weapon in the course of employment may be limited by the employer.

What does this mean for employer weapons or violence policies?

Know your state laws. The Sixth Circuit’s careful analysis of the statutes involved here, particularly Michigan’s Self-Defense Act and its concealed carry law, suggests that courts will painstakingly tease apart statutory language in an attempt to discern legislative intent — and to determine whether an employer’s actions crossed the line. Notably, not all conceal and carry laws provide specific language addressing employers, as Michigan’s does. Additionally, two different federal district courts in Kentucky earlier this year took apart Kentucky’s weapons-in-vehicles law to reach different results in separate cases of two employees who were disciplined in situations that involved guns in vehicles. That suggests you should spend a few hours now examining the relevant gun laws in your state in light of the “every word matters” approach courts have taken so far. It could save you substantially more time later.

What does your state’s “weapons-in-vehicles” or “parking lot” law specify, if there is one? Not all states with concealed carry laws also have laws providing for employees’ rights to keep a weapon concealed in a locked vehicle on the employer’s premises. And, while many of these laws are similar, their language is decidedly not identical, and it is important to track the statutory language carefully. For example, enforcing one employer’s weapons policy did not violate Kentucky’s weapons-in-vehicles law because the policy did not bar employees from storing weapons in their vehicles; rather, it required employees to complete and file with the employer a “Weapons Approval Form,” which the employee had failed to do. Although the employee argued the statute precluded all forms of regulation, the court disagreed, saying “If the Kentucky legislature had intended to limit an employer’s right to require the disclosure of weapons, they would have done so” (Mullins v Marathon Petroleum Co, LP).

This would not be true in states like Florida, where “no employer may violate the privacy rights” of an employee (or others) “by verbal or written inquiry regarding the presence of a firearm” inside or locked in a vehicle, or by conducting “an actual search of a private motor vehicle in a parking lot to ascertain the presence of a firearm within the vehicle” (Fla Stat, Sec. 790.251(4)(b)). No disclosure can be compelled in Indiana or North Dakota either, and Alabama requires an employer believe its employee presents a risk of harm before making an inquiry, for example.

What do you know about your state’s stand-your-ground or self-defense statute, if your state has one? Not all stand-your-ground laws apply only to criminal proceedings, for starters. Moreover, these types of laws typically provide either self-defense or immunity. Self-defense is an affirmative defense — an argument that a weapon user was justified in his or her actions. An immunity law, such as Florida’s stand your ground law, confers more complete protection, and Florida’s law specifically applies in both the civil and criminal contexts.

A Florida state appeals court ruled in April that a finding of stand-your-ground immunity by a criminal court wasn’t necessarily determinative in a civil action brought by a non-party to the criminal case that involved “the same nucleus of facts and the same use of force.” The civil case involved a workplace incident — a current employee striking a former employee with a baseball bat — and after criminal charges were dismissed, the employer and bat-wielding employee moved to dismiss the civil action that had been filed against them by the former employee. The Florida appeals court ruled that collateral estoppel did not apply to completely bar the former employee’s civil claim, but that the trial court should not have dismissed the claim without conducting an evidentiary hearing on the stand-your-ground immunity claim (Professional Roofing and Sales, Inc v Flemmings).

Craft your policies carefully. Maybe it’s self-evident, but consider creating state-specific addenda for your workplace weapons policies. In the Mullins case cited previously, the weapons policy had a Kentucky addendum, which stated, “for Kentucky sites only, employees or contractors who lawfully possess a weapon may store such a weapon in his or her privately-owned vehicle” so long as the employee met certain administrative requirements, including completing and having on file a current “Weapons Approval Form” that disclosed the weapon. Of course, this won’t work everywhere; see, for example, Alabama, Florida, Indiana, and North Dakota above.

Watch for legislative changes. In light of all the above, anticipate that state legislatures also will be watching how judges interpret these laws. In addition to the potential for brand new legislation, states may seek to modify existing laws to close perceived loopholes or ensure that the rights of individuals – or employers – are protected.

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Much to sort out in the wake of Noel Canning

July 1st, 2014  |  Pamela Wolf  |  Add a Comment

Yesterday’s Supreme Court ruling that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional has understandably created more than just a little buzz in the labor law community — there is a lot to sort out in its wake. The Court found that because the Board appointments were invalid, the Board itself lacked a quorum and so could not lawfully act — calling into question the many decisions made during the non-quorum period. A fresh look at the Senate rules that some say gave rise to the need for recess appointments may also be in order.

Not all clarity was lost, though, because the High Court also held that the Recess Appointments Clause empowers the president to fill any existing vacancy during any recess — intra-session or inter¬session — of “sufficient length.” However, in this case, three days was too short a time to trigger a recess within the scope of the Clause.

Non-quorum decisions. Presumably understanding the enormity of the problem that the ruling has caused for the NLRB, Chairman Mark Gaston Pearce quickly issued a statement: “We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. … The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.” Pearce also pointed out the NLRB currently has a full contingent of five Senate-confirmed members, who he said are prepared to fulfill the Board’s responsibility to enforce the NLRA.

U.S. Chamber of Commerce President and CEO Thomas J. Donohue called the ruling “a victory for the rule of law.” He also underscored the problem that the executive action had created for employers: “The President’s unprecedented recess appointments left the NLRB in a legal limbo, causing major uncertainty for both employers and employees alike.”

What is the scope of the problem? Referring to the scope of the problem now facing the Board, Donohue said, “hundreds of decisions after those appointments were made in January 2012, including over 300 after the D.C. Circuit’s decision in Noel Canning v. NLRB.” In January 2013, the appeals court invalidated an NLRB decision against Noel Canning on the grounds that the Board lacked a quorum because three “recess” appointments to it were unconstitutional.

Data provided by then-NLRB GC Richard F. Griffin, Jr. in a March, 26, 2014, Memorandum indicated there were more than 142 cases that raised issues affected by the controversial Noel Canning case. Griffin noted there were then about 107 pending cases in the courts of appeals in which a party or the court has raised a question regarding the validity of the recess appointments of Members Griffin, Block, or Flynn. Another 35 cases, according to the Memorandum, have raised the question of the validity of Member Becker’s appointment. The GC also pointed to a Southern District of Ohio case that had been stayed since July 2013 awaiting the Noel Canning ruling — it was filed by National Right to Work on behalf of an individual seeking declaratory and injunctive relief that a Board order dismissing his certification petition was ultra vires.

The Memorandum also noted that the NLRB’s Section 10(j) litigation program continued to be affected by the issues raised in Noel Canning. While the validity of the president’s appointment of three members to the Board on January 4, 2013, was challenged in some district courts in response to Sec. 10(j) petitions, the primary challenges were to the Board’s 2011 delegation of authority to the GC to initiate 10(j) proceedings, either at its inception or that it lapsed when the Board fell below a quorum.

Respondents have also challenged the 2001 and 2002 Board delegations, Griffin said, as well as continued challenges to the validity of the 2011 delegation. This defense was raised in response to Sec. 10(j) petitions in FY 2013. According to the Memorandum, every court that addressed the issue upheld the validity of the Board’s delegations of the GC’s authority to initiate 10(j) proceedings, avoiding the constitutional issue of the validity of the recess appointments.

The GC also said that for the first time, respondents also mounted challenges in 2014 to Regional Directors that had been appointed by the recess Board and to the President’s designation of Acting General Counsel Lafe Solomon. He noted that a district court in the Western District of Washington dismissed a 10(j) petition on the basis that Solomon’s designation was invalid under the Federal Vacancies Reform Act (FVRA). The appeal of that case was still pending in the Ninth Circuit at the time the Memorandum was issued. In contrast, a court in the District of Alaska denied a motion to dismiss and granted injunctive relief after considering the FVRA and finding the employer brought an impermissible collateral attack or a direct attack that failed pursuant to the de facto officer doctrine. Similar challenges were litigated in three other cases, with one still pending in district court at the time the data was provided. Two of the challenges were rejected, with one under appeal in the Second Circuit, Griffin said.

Reactions on Capitol Hill. On the Hill, Sen. Lamar Alexander (R-Tenn.) called the High Court ruling a “a powerful rebuke to the Obama administration.” He said the decision serves as a reminder that the Constitution confers on the Senate powers that the executive branch cannot usurp. “Our founders wanted a President, not a king, and our Constitution is written to protect against precisely the kind of overreach this president demonstrated with his so-called recess appointments to the National Labor Relations Board.”

Alexander traced the actions he and his colleagues took in an effort to undo the president’s recess appointments to the Board:

  • In September of 2012, Alexander and 41 Republican senators filed an amicus brief in the Noel Canning (the D.C. Circuit challenge). 
  • In February 2013, Alexander called on the president’s appointees, Sharon Block and Richard Griffin, to “leave the board,” after the D.C.  Circuit in January ruled their “recess” appointments to the NLRB were unconstitutional.
  • In March 2013, with 17 cosponsors, he introduced a budget amendment to defund decisions and regulations made by what he called “the unconstitutional NLRB ‘quorum.’”
  • In April 2013, Alexander introduced the “Preventing Greater Uncertainty in Labor-Management Relations Act,” to prohibit the NLRB from taking any action that requires a quorum until the Board members constituting the quorum have been confirmed by the Senate, the Supreme Court issues a decision on the constitutionality of the appointments to the board made in January 2012, or the first session of the 113th Congress is adjourned.

Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor, and Pensions Committee, perhaps would consider these Republican-initiated efforts as aimed at rendering the NLRB impotent. In the wake of the Supreme Court ruling he issued a statement defending the president’s actions: “The American men and women who manufacture our goods, nurse us back to health, and build our roads are the backbone of the middle class and the driver of our economy. Our nation relies on them. The least we can do is ensure that their basic rights are protected and that they have a voice in the workplace. In that regard, and in the face of a Republican Party determined to reduce the NLRB to a toothless body, I believe President Obama did the right thing in using recess authority to appoint members to the National Labor Relations Board.”

Harkin also said that the most important thing going forward is to focus “on taking necessary steps to ensure that we have a strong NLRB able to adjudicate our nation’s labor laws and to ensure that our workers are able to participate in a democratic workplace.”

Time to change Senate procedures? The CWA pointed to a different aspect of the High Court ruling and the long road that put the recess appointment issue before the Justices. “Today’s Supreme decision is a sharp reminder that the U.S. Senate functions under archaic procedures that must change. That’s especially true of the rule requiring a super-majority, or 60 votes, for the Senate to recess.”

The Senate rules are contrary to those of other public bodies, according to the union: “In every other democratic meeting, from the local city council to any major parliamentary body, proceedings are recessed by a majority vote. Only the U.S. Senate requires a super-majority to proceed to debate on most motions, legislation, and including the motion to recess.”

The consequence of this rule, according to the CWA, has been a “key tactic used by the Senate minority to block confirmation of the president’s executive and judicial nominations.” The union said that Senate Minority Leader Mitch McConnell made it clear that his party’s goal was to make President Obama a one-term president. “When that didn’t succeed, the Senate minority stepped up a campaign of delay and obstruction of appointments and any progressive legislative advances,” the union observed. “The minority’s strategy of refusing to proceed to a vote for any recess has made a mockery of the Senate’s role in government.”

In the eyes of the CWA, “the Senate’s constitutional duty is to review the president’s nominees through ‘advice and consent’ — not use parliamentary tricks to impede his policy agenda.”

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President Obama’s recess appointments to NLRB declared unconstitutional

June 26th, 2014  |  Ron Miller  |  Add a Comment

President Obama’s January 2012 recess appointments to the NLRB failed to pass constitutional muster, the U.S. Supreme Court held Thursday. Because the Board appointments were invalid, the Board itself lacked a quorum and so could not lawfully act. The High Court thus affirmed a decision of the D.C. Circuit invalidating the agency appointments. However, the decision was not a total defeat for the executive branch. The Court held that the Recess Appointments Clause empowers the president to fill any existing vacancy during any recess — intra-session or inter­session — of “sufficient length.” Here it determined that three days were too short a time to trigger a recess within the scope of the Clause. Justice Scalia filed a separate opinion concurring in the judgment (NLRB v Noel Canning, June 26, 2014, Breyer, S).

Noel Canning petitioned for review of an NLRB order claiming that the Board lacked a quorum because three of its five members had been appointed invalidly. The nominations of the three members were pending before the Senate when it passed a resolution for a series of “pro forma sessions” with no business transacted. Invoking the Recess Appointments Clause, which gives the president the power “to fill up all Vacancies that may happen during the recess of the Senate,” the president appointed the three members between two pro forma sessions. Noel Canning asserted that the Board lacked authority to act for want of a quorum, arguing the three members were never validly appointed because they took office under recess appointments when the Senate actually was not in recess. Specifically, Noel Canning argued that the three-day adjournment between the two sessions was not long enough to trigger the Recess Ap­pointments Clause.

As an initial matter, the Supreme Court held that the Recess Appointments Clause empowers the president to fill any existing vacancy during any recess — intra-session or inter­session — of sufficient length. The Clause should be interpreted as granting the president the pow­er to make appointments during a recess but not offering the presi­dent the authority routinely to avoid the need for Senate confirma­tion.

Recess appointments generally. Observing that presidents have made recess appointments since the beginning to the Republic, the High Court concluded that the Senate and president have recognized that such appointments can be both neces­sary and appropriate in certain circumstances. Thus, in inter­preting the Clause for the first time, the Court hesitated to upset the com­promises and working arrangements that the elected branches of government themselves have reached.

Inter-session and intra-session. The phrase “the recess of the Senate” applies to both inter­session recess — breaks between formal sessions of the Senate — and intra-session recesses — breaks in the midst of a formal session — of substantial length. The Senate has never taken any formal action to deny the validity of intra-session recess appointments. However, here the Court found that the Senate was in session dur­ing the pro forma sessions. It said it was in session, and Senate rules make clear that the Senate retained the power to con­duct business.

Three days not enough. The NLRB recess appointments at issue in this case came during a three-day recess. Concluding that a three-day recess appointment was too short to trigger the Recess Ap­pointments Clause, the Court held that President Obama lacked the authority to make those appointments. As a result, the High Court affirmed the appeals court’s judgment that the President’s appointments were invalid, so that the NLRB did not have a quorum and could not lawfully act.

Justice Breyer’s majority opinion was joined by justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Scalia filed an opinion concurring in the judgment, in which Chief Justice Roberts joined, as well as justices Thomas and Alito.

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Three key NLRB decisions are in the pipeline

June 24th, 2014  |  David Stephanides  |  Add a Comment

Later this year or into the next, the National Labor Relations Board could issue decisions on several issues it has signaled its intent, via invitations to file briefs, to decide. First up, the Board intends to take up the question of whether Northwestern University football players are “employees” who can unionize. In March 2014, an NLRB regional director ruled that grant-in-aid scholarship football players at Northwestern were statutory employees under the NLRA and directed a representation election to take place (the results of the election have been impounded). The regional director concluded that scholarship players who perform football-related services for the university under a contract for hire in return for compensation are subject to the employer’s control and are, therefore, employees within the meaning of the Act.

Next, the Board has solicited briefs regarding employees’ use of electronic communication in conjunction with their Section 7 rights and the question of whether the Board’s 2007 decision in Register Guard should stand. In the underlying case, an administrative law judge, relying on Register Guard, dismissed an allegation that an employer unlawfully prohibited use of its electronic equipment and email systems for activity unrelated to the employer’s business purposes.

The NLRB General Counsel and the Communication Workers of America, AFL-CIO, have asked the Board to overrule Register Guard and adopt a rule that employees who are permitted to use their employer’s email for work purposes have the right to use it for Section 7 activity, subject only to the need to maintain production and discipline.

Finally, the Board intends to address its joint employer standard. The Board has asked: Should the Board adhere to its existing joint-employer standard or adopt a new standard? And, if a new standard involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

With these decisions in the pipeline, and with a full Board sitting, it promises to be an interesting and invigorating time for those keeping an eye on the labor law landscape.

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