Will the U.S. Supreme Court Curb the President’s Recess Appointment Power?

NLRB 1 (2)By:  TIMOTHY C. HAUGHEE

JANUARY 13, 2014

As we previously reported, the U.S. Supreme Court last summer announced that it 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 hundred employment-related decisions by the NLRB.  Today, the Supreme Court heard oral arguments from the attorneys for the respective parties.  While the Supreme Court’s decision will not be released until later this year, it appeared from the justices’ comments made during today’s oral arguments that the advantage was with the parties challenging the recess appointments.  A concise synopsis of the parties’ arguments and the justices’ comments can be found here.

Until the Supreme Court renders a final decision, however, 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 provide a timely update after the Supreme Court issues its opinion.

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