June 24, 2013
Earlier today, the U.S. Supreme Court announced that the high court would review whether or not President Barack Obama’s recess appointments of three National Labor Relations Board (NLRB) members exceeded his constitutional authority, potentially nullifying several employment-related decisions by the NLRB.
The recess appointments were made in 2012 while the U.S. Senate was ostensibly in recess. However, in an effort to block the President’s authority to make recess appointments, Republicans in the Senate instituted “pro forma” sessions, in which the body was gaveled to order and then immediately adjourned for another few days. Opponents of the President’s recess appointments argued that because the Senate was still technically in session (and thus not in recess), the President lacked the authority to make the recess appointments.
Earlier this year, a unanimous three-judge panel of the United States Court of Appeals for the District of Columbia struck down the appointments, holding that the President did not have the constitutional authority to appoint NLRB members during the pro forma sessions. The ruling called into question hundreds of decisions rendered by the NLRB since the recess appointments were made, including decisions affecting non-union workplaces. Shortly thereafter, the NLRB appealed that ruling to the U.S. Supreme Court.
Until the Supreme Court renders a final decision, we recommend out of an abundance of caution that employers continue operating as though all recent NLRB decisions are still valid, including recent rulings on social media use by employees in the workplace and employee handbook statements on “at will” employment. We will continue to provide timely updates regarding this important case as it develops.