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Employer Law Report

President Obama issues executive order prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity

Posted in EEO

On July 21, 2014, President Obama issued an executive order amending Executive Order 11246 by adding sexual orientation and gender identity to the list of protected classes for federal contractors and subcontractors. Under the amended Executive Order 11246, federal contractors and subcontractors are required to select and employ individuals without regard to sexual orientation and gender identity.  Executive Order 11246’s nondiscrimination provisions apply to contractors and subcontractors with over $10,000 in total government contracts and subcontracts in one year. This executive order does not include a religious exemption, which was the subject of negotiation between the White House and religious groups over the past few months. Although the amendments add sexual orientation and gender identity to the discrimination prohibitions under the Executive Order, they do not include any obligation for affirmative action on these bases.

The order takes effect immediately but applies only to government contracts entered into after July 21, 2014. Regulations implementing the Order will be issued within 90 days.

Federal contractors should review their discrimination and harassment policies and modify them to add protections for sexual orientation and gender identity if those protections are not already included. Sexual orientation and gender identity remain outside the protection of federal and Ohio nondiscrimination laws for private employers who are not federal contractors, although they are sometimes covered  by local municipal law. The proposed federal Employment Non-Discrimination Act (EDNA), which would prohibit discrimination and harassment on the basis of sexual orientation and gender identity for all private employers (exempting only businesses with less than 15 employees and religious organizations), was passed by the Senate but is stalled in the House.

The Obamacare see-saw — an opposing decision on subsidies

Posted in Employee Benefits/ERISA, Traps for the Unwary

Some days are just more fun that others!

Just hours after the D.C. Circuit Court of Appeals issued its opinion in Halbig v. Burwell, which held that tax subsidies made available under the Affordable Care Act (“ACA”) to lower income individuals to help defray the cost of health care coverage may not be extended to individuals who reside in states that have elected not to establish their own health care exchanges, the 4th Circuit Court of Appeals today issued a unanimous decision today in King v. Burwell that upholds entitlement to tax subsidies available under the ACA for all eligible lower income individuals—whether or not they reside in a state that has established its own health care exchanges under the ACA (see http://www.ca4.uscourts.gov/Opinions/Published/141158.P.pdf). As in Halbig, the plaintiffs in King argued that Congress intended that the subsidies only be available in states that set up their own exchanges. In essence, the plaintiffs were challenging the interpretation of the ACA made by the Internal Revenue Service (the “IRS”) that authorized the IRS to grant subsidies to individuals who purchase health care coverage both through state-sponsored exchanges and through the federally-run exchange. Like the plaintiffs in Halbig, the plaintiffs in King argued that the IRS’s interpretation was contrary to the language in the ACA. The Fourth Circuit panel viewed the issue quite differently, and upheld the system of federal subsidies now available under the ACA.

In affirming the decision of the District Court judge in King, the panel acknowledged that the language in the ACA on this question was ambiguous. The panel decided it was appropriate to extend deference to the interpretation of the IRS, and thus upheld the interpretation that subsidies were available no matter whether a state had established its own exchange.

We are early in this game, but with today’s dueling decisions coming down on opposite sides of this issue, one has to assume that it is increasingly likely (perhaps virtually certain) that this issue is headed to the United States Supreme Court for resolution. Here we go again.

Obamacare takes an unexpected hit!

Posted in Employee Benefits/ERISA, Traps for the Unwary

A federal Court of Appeals panel in Washington, D.C. today released a decision that, if upheld, would strike down one of the main pillars of the Affordable Care Act (“ACA”) and in the minds of many observers lead to unpredictable consequences. In a 2-1 decision in Halbig v. Burwell, the three-judge federal appeals panel reversed a decision by a lower District Court judge and held that tax subsidies made available under the ACA (often referred to as Obamacare, with or without derision) to lower income individuals–generally individuals making less than $46,075 annually–to help defray the cost of health care coverage may not be extended to such individuals who reside in states that have elected not to establish their own health care exchanges under the ACA. The plaintiffs in the case argued that Congress intended that the subsidies only be available in states that set up their own exchanges. This panel embraced that argument (although this decision may find its way to the United States Supreme Court). Until now, the court decisions on this issue have favored the federal government, so this decision properly can be characterized as at least a mild surprise.

If this decision stands, a large number of individuals could be affected. Twenty-seven states (most of which are controlled by Republicans) opted not to create their own exchanges. Nine other states essentially have elected to partner with the federal government, and so presumably they too would be affected by today’s decision. Only 14 states (plus Washington, D.C.) are sponsoring their own exchanges, and thus would be unaffected.

The subsidies available under the ACA can be crucial to ensure affordable coverage. According to a recent report issued by the Department of Health and Human Service, individuals who purchased plans with subsidies have a net premium cost that is on average 76 percent less than the full premium, which reduces their average premium from $346 to $82 per month. These individuals would be confronted with a significant increase in the cost of coverage. It is worth noting that this decision does not affect the obligation imposed under the ACA on these individuals to purchase coverage or face a penalty (although the option to obtain coverage may become less appealing for individuals, many of whom likely would be younger, who think they are healthy and thus perceive themselves as less in need of coverage). Approximately 5.4 million individuals signed up for coverage on the federally-run exchange early this year, and approximately 87 percent of those individuals are expected to receive subsidies. The system created by the ACA, including cost control initiatives, could face considerable pressure if as a result of this decision a high percentage of covered individuals are older and sicker. The stakes are high.

While Congress could fix this problem legislatively, any thoughts of congressional action seem fanciful. Once again, this issue will have to play out in the courts, and we all get to watch.

EEOC issues updated enforcement guidance on pregnancy discrimination and related issues

Posted in EEO

Over the dissents of Commissioners Lipnic and Barker, the U.S. Equal Employment Opportunity Commission (EEOC) on Monday, July 14, 2014, issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance and a Fact Sheet for Small Businesses. In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008, to individuals who have pregnancy-related disabilities.

According to the EEOC, the guidance sets out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons similar in their ability or inability to work. The guidance also explains how the ADA’s definition of “disability” might apply to workers with impairments related to pregnancy.

Among other issues, the EEOC’s guidance discusses its views on the following:

  • The PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
  • Lactation is a covered pregnancy-related medical condition;
  • The circumstances under which employers may have to provide light duty for pregnant workers;
  • Issues related to leave for pregnancy and for medical conditions related to pregnancy;
  • The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;
  • The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
  • When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
  • Best practices for employers to avoid unlawful discrimination against pregnant workers.

The statements of dissent from Commissioners Lipnic and Barker, courtesy of BNA, both question the timing of the issuance of this guidance because the U.S. Supreme Court just agreed to hear the Fourth Circuit case of Young v. United Parcel Service, Inc., in which the Court is likely to address many of these issues, including the premise that a routine pregnancy is a disability under the ADAAA that must be reasonably accommodated. As Commissioner Lipnic notes, the EEOC’s Guidance ultimately may be mooted by the Young decision when it comes out. But until then, employers should note that the EEOC will be expanding the rights of pregnant workers.

Corporations get religion — and maybe lose contraception coverage

Posted in Employee Benefits/ERISA

Editor’s Note:  This blog was originally published on our sister blog – Employee Benefits Law Report - last week and we wanted to share it with our blog readers here as well.

The United States Supreme Court held in a 5-4 decision issued on Monday, June 30 that regulations issued under the Affordable Care Act (the “ACA”) that compel closely held corporations to provide contraception coverage for their employees violated the Religious Freedom Restoration Act of 1993 (the “RFRA”). Two cases actually are involved in this opinion, including Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius (referred to hereafter simply as Hobby Lobby). In an opinion written by Justice Samuel Alito, the court’s conservative block (all five of the so-called conservative justices appointed by Republican presidents) concluded that closely held corporations such as Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. cannot be required to provide contraceptive coverage if doing so would be contrary to sincerely held religious beliefs of the corporation’s owners. For the first time, the Court has ruled that the RFRA covers corporations–or at least certain corporations. In yet another example of the partisan divide on the Court, the four so-called liberal justices (three of whom are women, and all of whom were appointed by Democratic presidents) did not support the majority opinion and, in doing so, warned of future efforts to use religious beliefs to trump the application of laws and regulations that are perceived to be undesirable. Presumably as an expression of her angst with the majority opinion, Justice Ruth Bader Ginsburg read a portion of the dissent that she authored from the bench when the decision was announced on Monday.

The dispute over contraception coverage in Hobby Lobby arose from a provision in the ACA that requires heath care plans to offer free preventive care. While means of contraception are not specifically referenced in the ACA, under regulations issued by the Obama administration the term preventive care was interpreted to include all contraception and sterilization measures approved by the United States Food And Drug Administration, including birth-control pills, intrauterine devices and the morning-after pill.

The owners of Hobby Lobby, an Oklahoma-based arts-and-crafts chain owned by founder David Green, an evangelical Christian, and other family members and the Mennonite owners of Conestoga Wood Specialties, a Pennsylvania-based cabinetmaker, brought actions to challenge the ACA requirement that health care plans cover certain contraceptives. Although not entirely clear, it appears that Hobby Lobby and Conestoga Wood Specialties did not object to all required contraception methods, but specifically rejected morning-after pills and intrauterine devices–that objection was the basis for their law suits. Notwithstanding this more narrow concern, the Court’s opinion (while limited in certain respects) seems broad enough to apply to other forms of contraception as well.

In Monday’s decision, closely held profit-making corporations were found to have a legal right under the RFRA not to be forced to include contraception coverage under their plans if doing so would be contrary to sincerely held religious beliefs of the corporations’ owners. Justice Alito tried to emphasize that this decision was limited in its breadth, and that it did not necessarily open the door to other challenges based on religious convictions. Moreover, the majority explained that the opinion only applied to closely held corporations. In a short concurring opinion, Justice Anthony Kennedy tried to reinforce the limited nature of this opinion. As a means to alleviate a resulting lack of contraception coverage, Justice Alito suggested in the majority opinion that the Obama administration offer to for-profit companies the same accommodation previously extended by the administration to religiously affiliated non-profits that also objected to contraception coverage in their plans. Under this accommodation (which applies to both insured and self-insured plans, although in different ways) insurers or third party administrators are required to provide contraceptive coverage without charging premiums to employers or copayments to covered individuals. Alternatively, the court stated that the federal government simply could pay for contraceptive coverage with a subsidy (although it is unclear whether that approach would be possible without enabling legislation). Surely the Obama administration already has begun consideration of alternatives to ensure contraception coverage. New White House Press Secretary Josh Earnest stated on Monday that the White House is reviewing the decision and determining its options, including pursing a legislative fix (although the legislative route seem quite unlikely in this tumultuous partisan place called Washington).

Leaving aside political intrigue (which the majority of Americans would be only too happy to do), the practical implications of the Hobby Lobby decision are uncertain. While it is not entirely clear how the Court would define a closely held corporation, based on recent studies a sizable percentage of small businesses are not even subject to the ACA mandates (including contraception coverage) because they have fewer than 50 full-time employees. Moreover, according to a study prepared by Mercer Human Resources Group, approximately 90 percent of all employers in the United States (regardless of size) already offered contraception coverage. Wholesale changes in the prevalence of contraception coverage even after this decision may well be unlikely.

It must be noted that employers also will have to review the possible application of any state laws that might require contraception coverage despite the holding in Hobby Lobby. Many states have enacted laws that require employers that offer prescription drug coverage to cover certain contraceptives as well. Since the Court’s decision in Hobby Lobby was based on the application of the RFRA, it does not invalidate those state laws (although employers that sponsor self-funded plans may be able to evade such state laws under ERISA’s preemption doctrine).

The Hobby Lobby decision certainly ended the Supreme Court’s term with a bang (and was announced as protestors on both sides of the issues demonstrated in front of the Supreme Court building in Washington, D.C.). Coming just two years after the Supreme Court held that the ACA was constitutional, even though the Court at that time invalidated the mandatory expansion of Medicaid, some will view this decision as both a legal and a political defeat for President Obama. Others will view the decision as a setback for women’s rights, even though the majority opinion (as well as Justice Kennedy’s concurring opinion) tried to frame this case as a matter of religious freedom and even then as a decision with a very narrow application. To no one’s surprise, the decision has set off a frenzied partisan debate that seems likely to play out through the November congressional elections and into the future over religious and reproductive rights. Both parties have launched fundraising initiatives based on the decision.

Perhaps the more significant but as yet unknowable legacy of the Hobby Lobby opinion will be its possible extension to other laws and regulations that might be considered to clash with religious beliefs held by owners of closely corporations–and whether these principles get extended to other forms of corporations. In her dissent, Justice Ruth Bader Ginsburg stated that she believed the Court inadvertently “ventured into a minefield.” Only time will tell if she is correct.

Court holds employers not liable for employee defamatory online speech made using employer computers. Plaintiffs can’t take the money and run!

Posted in Social Media, Workplace Privacy

There seems to be a news story every day detailing employee misuse of social media. In fact, in a recent survey released by Proskauer Rose LLP, more than 70 percent of the 110 businesses surveyed reported they had to take disciplinary action against employees for misusing the technology.

Living in the U.S.A., we have grown accustomed to seeing corporate mis-tweets, where an employee accidently posts a personal tweet from a corporate account, and rogue employee cases, where an employee purposefully posts something inappropriate to a corporate social media account.

But now, introducing a new type of corporate social media mishap, where an employee posts defamatory remarks to an online forum anonymously … from the employee’s company computer … and the employer gets sued for defamation. I’ll pause while that sinks in.

Our cautionary tale comes from Miller v. Federal Express Corp., a case out of Indianapolis where the plaintiffs sued FedEx and 500 Festival for defamation and intentional infliction of emotional distress based solely on the fact that someone using their computers posted allegedly defamatory comments about the plaintiffs. While I can tell you that this cautionary tale has a [spoiler alert] happy ending for FedEx and 500 Festival, this case serves as a reminder to employers to tighten those social media policies and take action against employees who are discovered to be making such statements using the company’s computers.

Recall the Beginning…A Journey from Eden

Jeffrey Miller was a member of the Indiana business community and an employee of a non-profit organization. In the spring of 2008, he worked on a project between two non-profits (one he had worked for in the past and one he was then working for) to build a school. Construction on that project, however, was stopped two years later when the primary financial backer stopped payments allegedly due to defamatory statements by two co-defendants to the suit.

Later, a business magazine published an online article regarding the allegations and the controversy surrounding the school construction. The article itself was harmless enough. But then came the online comments, and some of them were bad … really bad.

One comment posted under the username “JA Fan” read in relevant part:

The new CEO has inherited a mess not of her doing. The former CEO [Miller] and finally –fired VP’s misuse (for their own personal gain) of funds that were dedicated to educating Indiana children are at the very least an embarrassment to the dedicated staff who have continued to push on, and most likely a criminal act. If you were a donor or sponsor in the last decade to these guys, an audit is definitely in order.

Another posted under the handle “Really?” read in relevant part:

Does this include paying the contractors? As the fundraiser and key money guy, probably has an eye on revenue and expenses. … “what is so depressing and unfair is that the subcontractors were never told the funds were suspended and [the non-profits] let them keep working.” … If they told JA, who did not own the building or sign the construction contracts, I’m pretty sure as a tenant with an interest in what’s happening to the building, they would notify the Landlord, President Miller (who did the deal to bring Ivy Tech to the building, who also took money to fund the construction, who was also the “project manager” responsible for day-to-day operations) that his project is going to be halted and his building left in a mess. Now a storied and critical organization is a mess in his wake. Was it the great philosopher, Steve Miller, who said, “Go on, take the money and run!”? Perhaps a relative?

Another posted under “Concernd” read: “these guys are crooks (Jeff Miller, Victor George and other parties) and have been robbing from our community using kids as there [sic] hook. I hope they go to jail!!!!?

This made the Millers (husband and wife sued) wonder, Who’s Been Talkin’? Discovery revealed that the first two comments were made by the vice president of corporate sponsorship at 500 Festival using a company computer located at 500 Festival’s offices. The third comment was made by an unknown person from an IP address assigned to FedEx and was not traceable to any specific user. Rather, it belonged to one of FedEx’s proxy servers that filtered internet traffic from thousands of FedEx users.

And Abracadabra, the Millers sued Federal Express, 500 Festival, and some individual defendants claiming defamation and intentional infliction of emotional distress. Federal Express and 500 Festival moved for summary judgment claiming immunity under the Communications Decency Act (CDA), which [here’s the happy ending] the trial court granted and the appeals court affirmed.

The Application of 230

The relevant, what-you-need-to-know, background about Section 230, which is the immunity provision of the CDA is that it protects companies that serve as intermediaries for online speech from liability for harmful content posted by third parties. Section 230 immunity protects online services, such as Google, Yahoo, and Microsoft, that host or republish third party content from liability based on what the third party says or does on the service. Holding otherwise would cripple internet speech.

Section 230 immunity requires a three-part showing:

  1. The entity seeking immunity is a provider or user of an interactive computer service (ICS).
  2. The plaintiff’s claim treats the entity seeking immunity as the publisher or speaker of the harmful information.
  3. The information at issue was provided by another content provider.

Satisfying those three elements immunizes the defendant from suit, although the author of the offensive content could still be held liable.

In Miller, the court determined 500 Festival and FedEx were both ICS providers because they enabled computer access for multiple users on their respective computer networks to access the Internet by means of the servers on each network.  In doing so, the court cited a few cases where employers were sued for online employee misconduct including: Delfino v. Agilent Technologies, Inc., 52 Cap.Rptr.3d 376 (Ca. Ct. App. 2006) (finding the employer was an ICS in suit against employer claiming an employee the employer claiming an employee sent them threatening emails and messages posted to online bulletin boards using the employer’s internet service connection); and Lansing v. Sw. Airlines Co., 980 N.E.2d 630, 631 (Ill. App. Co. 2012) (finding the employer was an ICS in suit for negligent supervision over an employee who sent threatening messages).

The next element provides that the CDA only protects an ICS provider from claims that seek to hold it liable as a publisher. The court found that the Millers were indeed seeking to hold 500 Festivals and FedEx liable as publishers of the defamatory content (as opposed to the Lansing case where the claim was for negligent supervision and not publication). The court found that in suing 500 Festival and FedEx for defamation and intentional infliction of emotional distress that the Millers were certainly seeking to hold both employers as the publishers of the allegedly defamatory posts.

Lastly, the CDA only protects an ICS provider from information provided by someone else. The evidence clearly established that the problematic online posts came from an unknown FedEx user and from an employee of 500 Festival.

Finding the employers satisfied all three elements of Section 230, the court affirmed the trial court’s summary judgment dismissal and sent a message to the Millers to Give It Up.


Employers can try, but they will never be able to control what employees say using the employer’s internet service. The good news for employers is that Section 230 provides immunity for employers for suits that grow out of defamatory online speech made through their computers. But, Don’t Cha Know, it is not a Perfect World, and even with Section 230 immunity, it is important for employers to make sure that their social media or computer usage policies provide sufficient guidance to employees as to what is acceptable online speech that may be made through their computers and what is not. Employers should also be wary of the Lansing opinion, which gives those harmed by defamatory speech a vehicle to go after employers who know their employees are making defamatory statements through use of their computers and do nothing to stop it. While I Want to Make the World Turn Around for employers on these types of liability issues, the law is what the law is. The best practice for an employer is to have proper social media and computer usage policies, train employees on them, and if an employee violates either one, proceed with proper responsive discipline.

Federal court finds employer may be liable under the ADA for employee’s snarky Facebook comments about another employee’s medical condition

Posted in EEO, Leave Administration, Other Articles

In Shoun v. Best Formed Plastics, Inc., a federal judge held that an employer may be liable for an employee’s snarky Facebook comments about another employee’s medical condition. This case serves as a good reminder to employers and employees alike of the importance of preserving the confidentiality of employee medical information.

Factual background

George Shoun, an employee at Best Formed Plastics, suffered a workplace injury and took a few weeks off work to recover. Jane Stewart, another employee, processed his worker’s compensation claim and monitored his medical treatment for the company. In doing so, she learned the nature and extent of his injury.

For whatever reason, Stewart took to her personal Facebook page and posted: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” The post stayed up for 76 days and, according to Shoun, was viewable by surrounding business communities.

Shoun sued the company claiming it, through its employee, violated the ADA by “deliberate[ly] disclos[ing] [his] medical condition to another person.” He also claimed Stewart “acted with the intent to expose him to public scorn and ridicule and to blacklist him among prospective employers within her broad network” that resulted in a loss of employment, impaired his earning capacity, and caused him emotional distress and mental pain and suffering.

The employer moved to throw out the case with a motion to dismiss and made two arguments: (1) it could not be liable for violating the Americans with Disabilities Act’s (ADA) confidentiality provisions because Shoun voluntarily disclosed his medical condition to the public before Stewart’s Facebook post; and, (2) Shoun failed to allege a tangible injury that resulted from the alleged ADA violations.

The decision

Medical information is confidential, and here is why: Section 102 of the ADA provides that any information relating to a medical condition of an employee obtained by an employer during “voluntary medical examinations, including voluntary work histories, which are part of an employee health program available to employees at that work site,” must be “collected and maintained on separate forms and in separate medical files and [be] treated as a confidential medical record.”

To state a viable claim under the ADA’s confidentiality provisions, a plaintiff has to allege (1) his employer obtained the medical information through employment-related medical examinations and inquiries; (2) the information was disclosed by the employer and not treated confidentially; and (3) the employee suffered a tangible injury as a result of the disclosure.

On the voluntary disclosure issue, it turns out Shoun did disclose his medical condition in a complaint he filed in a state court lawsuit before Stewart’s Facebook disclosure. The employer alleged it could not be liable because Stewart’s disclosure was just her reciting facts that Shoun had already voluntarily and publicly disclosed.

Neither side alleged Shoun voluntarily disclosed the information to Stewart or the employer, so the employer could not rely on the fact that the information had been publicly disclosed to get out of the suit. The court did not take up the issue of whether Stewart obtained the information from a public source. The issue was whether Shoun pleaded that Stewart obtained the information through an employment-related medical inquiry and then wrongfully disclosed it. According to the court, Shoun had.

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U.S. Supreme Court rules against the NLRB in recess appointments case

Posted in Labor Relations

On Thursday, June 26, 2014, the United States Supreme Court ruled the three recess appointments President Obama made to the National Labor Relations Board (“NLRB” or “Board”) in January 2012 were invalid and unconstitutional. In NLRB v. Noel Canning, the Supreme Court unanimously ruled that President Obama exceeded his powers when he by-passed Congress and unilaterally appointed three Board members to the NLRB in January 2012. The issue turned on whether Congress was in “recess” at the time the appointments were made – as claimed by the President – or on an intra-session break as claimed by the employer group that filed the case.

All nine Supreme Court Justices ruled that the President exceeded his powers with the January 2012 appointments. However, five Justices (Breyer, Kennedy, Ginsburg, Sotomayer, and Kagan) joined in basing their decision on the fact the Senate break during which the President made these particular appointments was only three days in duration. The majority opinion written by Justice Breyer noted: “Ultimately, having examined the history, we find that to count as a ‘recess,’ a break—whether intersession or intra-session—must normally last for 10 days or more. That is a length sufficient to create a potential need for a presidential appointment.”

The other four Justices (Scalia, Roberts, Thomas, and Alito) joined in a concurring opinion that reads more like a dissent because of its attack on the majority opinion and call for a more literal application of the Constitution and the high court’s separation-of-powers. This opinion, written by Justice Scalia, asserts: “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” and would likely “have the effect of aggrandizing the presidency beyond its constitutional bounds…well beyond the dispute at hand.”

The immediate fall-out from the Supreme Court’s decision will be dramatic. Over 100 cases involving challenges to the validity of decisions issued by the illegally-appointed Board members are currently pending in the federal court system. According to an NLRB spokesperson, the Board issued over 400 decisions in contested cases between Jan. 31, 2012, and July 16, 2013.  The validity of many of these decisions is now in question.

The NLRB does currently have a full five-member panel, all of whom were approved by the Senate.  Three of the current members are “Democratic” (considered to be pro-labor) appointees and two are “Republican” (pro-employer) appointees. So, many of the Board decisions and legal holdings rendered invalid by the Supreme Court’s decision could be rehabilitated by the current Board. However, for now, the only guidance the NLRB has provided is the following press release from current NLRB Chairman Pearce:

“The Supreme Court has today decided the Noel Canning case. We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.”

Introducing our mobile-device friendly microsite – the Employer Law Forecast

Posted in Other Articles

In this first week of Summer, we are excited to let our blog readers be among the first to know about our launch of a new microsite – Employer Law Forecast, a new way to deliver insightful legal content to readers.

The Employer Law Forecast is an online tool that helps employers and human resource professionals plan for employment law issues that occur seasonally.  For example, as we kick off summer, we help you address common workforce issues during the summer months, including Managing the Heat for Employees, Hiring Interns, Workers’ Compensation and Summer Outings, Hiring Minors, Hiring Seasonal Workers, Managing Religious Holidays, Summer Holiday Pay Issues and How the FMLA Works During Holidays.

The site offers visitors a wealth of knowledge on employment law, combining relevant and educational information within entertaining and thought-provoking content. Sara Jodka, one of my colleagues and a frequent blogger, developed the Employer Law Forecast to supplement and complement the resources we provide here. The Forecast’s user-friendly seasonal format makes it easier you to find relevant information before it’s needed, and to serve as a helpful reminder of what employers can expect next.

“I realized that, like Groundhog’s Day, some employment-related issues seemed to pop up at the same time year after year,” said Sara Jodka, the editor of the Forecast. “By organizing these issues seasonally, employers do not have to wait for these blogs to publish every year. It allows them to be more proactive, to view all of their seasonal issues at once and even be able to calendar certain events.”

The Forecast was designed to provide easy access from mobile devices, optimizing the user experience depending on the type of device used to view the site. The Forecast functions like a smart phone app, but is still available on desktop computers, making it easy for readers to find the content they seek without downloading an app.

Please check the Forecast here.

Sixth Circuit finds all anti-retaliation provisions are not created equal, but they are legal landmines. Watch your step.

Posted in Employee Benefits/ERISA

Generally speaking, employment-related retaliation laws prohibit employers from taking adverse actions against employees who engage in protected conduct, like complaining about discrimination or harassment, or for participating in a governmental investigation.

There is no doubt anti-retaliation laws serve a good purpose, but did you know there are at least 40 different federal anti-retaliation laws? This does not even include the various state anti-retaliation laws. The scope of these laws is vast. There are anti-retaliation provisions in the federal employment laws, the Clean Air Act, the International Safe Container Act, and many more, but what is even more surprising is that the language of these anti-retaliation provisions varies just about as must as the areas of law in which they cover.

Sexton v. Panel Processing, Inc. is a recent Sixth Circuit case addressing ERISA’s anti-retaliation provision that highlights this point and proves that all anti-retaliation provisions are not created equal. Our sister blog, the Employer Benefits Report recently published a detailed analysis of this case, which is available here. Although Sexton held that a plain reading of the statute excludes unsolicited employee complaints, that decision is in conflict with other circuits. This disagreement among the federal courts on the meaning of ERISA’s anti-retaliatory provision should serve as a caution to employers to be very careful about actions they may take against an employee who has lodged a workplace complaint.