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Employer Law Report

Covered affirmative action employers — more scary news from the OFCCP

Posted in EEO

On August 6, 2014, the Office of Federal Contract Compliance Programs (OFCCP) announced a proposed rule that should be of real concern to covered affirmative action federal contractors. The OFCCP is the agency that enforces federal affirmative action laws. If the proposed rule is adopted, it will add compensation data to the information that covered employers must submit with their annual EEO-1 reports. Keep in mind the “web” of coverage under affirmative action laws reaches far. Coverage is triggered not just by direct federal contracts but also by contracts to provide goods or services to any private sector entity, as long as those goods or services are used in connection with fulfilling some federal contract that your customer or their customers may have. Coverage of financial institutions is triggered by being a depository for federal funds or by being an issuing or paying agent for U.S. Savings Bonds or Notes. Coverage issues and obligations can vary with the dollar volume of the covered work.

The Specifics:


Currently, the annual EEO-1 report contains race, ethnicity, and gender information about your workplace, sorted by nine EEO job-type categories. The proposed rule would expand the report to include the following information for each of the EEO categories by race, ethnicity, and gender: total number of employees; total W-2 income; total hours worked.


The obligation to provide compensation information on EEO-1 reports would apply to covered affirmative action employers with more than 100 employees and a covered federal contract or subcontract for $50,000 or more covering a period of at least 30 days, including modifications.

The Concerns:

The employer community which is subject to affirmative action obligations has very legitimate concerns about this new reporting obligation. OFCCP will use the data as part of its method for identifying contractors for compliance reviews. An OFCCP compliance review can involve not just review of the Company’s written affirmative action plan, but, also, a detailed review of its employment practices including compensation, hiring, and terminations. Employers have a legitimate question whether this broad-based compensation data is a legitimate basis for identifying a contractor for compliance review based on alleged concern about equal pay. A second, very real concern for the covered employer community is confidentiality of compensation information. OFCCP assures that the information can be submitted on a web-based data tool conforming with government IT security standards. But, EEO-1 reports are subject to Freedom of Information Act requests from the public. Even though OFCCP assures companies they will be given notice of any FOIA requests for their data and an opportunity to object, there is no assurance that the objections would be successful. Therefore, this proposed rule opens the door for confidential compensation information to be made available to competitors and the general public.

OFCCP intends to release aggregate summary compensation data by race and gender annually to the public. OFCCP believes that public dissemination of the aggregate data will give employers an opportunity to evaluate their own compensation structure against that of others in their industry.

Public comment on the proposed rule can be submitted through November 6, 2014.

Federal judge rejects the proposed settlement for tech companies who allegedly violated antitrust law by agreeing not to solicit each other’s employees

Posted in Business Competition

We previously discussed here the antitrust case involving several high-tech companies who allegedly entered into bilateral agreements in which they agreed not to solicit each other’s employees. These companies settled with the U.S. Department of Justice and were subsequently sued by a class of software engineers. Early on, Intuit and Pixar/Lucasfilm settled, and recently the plaintiffs and the remaining tech companies reached an agreement to settle the case for $324.5 million. Or maybe they thought they had, but guess what? The federal judge overseeing the case rejected that settlement, finding that it did not provide adequate monetary compensation.

U.S. District Judge Lucy Koh rested her decision primarily on the fact that, in the present settlement, the plaintiffs would recover proportionally less than the plaintiffs in the earlier settlements. The settling parties argued that the settlement was fair because the plaintiffs had “weaknesses in [their] case such that [they] face[] a substantial risk of nonrecovery . . . .” But, the judge found this explanation dubious, at best. In fact, the judge found that the plaintiffs had overcome substantial hurdles such as achieving class certification and overcoming dispositive motions. As the judge saw it, achieving class certification and beating dispositive motions provided greater settlement leverage, which the earlier settling defendants lacked, and thus should result in a larger settlement. Plus, and this should really scare the remaining defendants, the judge wrote that she believed that the plaintiffs had presented overwhelming documentary evidence in support of their antitrust claims. Thus, about the only remaining risk faced by the plaintiffs would be the unpredictability of trial. Yet, for the remaining defendant tech companies, they faced the potential of $9 billion in damages exposure.

The judge did throw a bone to the defendants by noting what settlement offer she would approve. She stated that the plaintiffs should receive at least $380 million—a mere $59.5 million raise—as that figure would be proportionate to the recovery against the earlier settling companies.

Now, the parties go back to settlement negotiations where the plaintiffs clearly have the momentum and leverage on their side given the judge’s favorable decision. It will be interesting to see what settlement results from those negotiations and how much the remaining tech companies will need to pay to resolve the civil claims by their software engineers.

Appellate Court throws exemptions to minimum wage laws in Ohio out the window

Posted in Other Articles, Wage & Hour

A divided Montgomery County Court of Appeals has determined that the Ohio minimum wage statute unconstitutionally restricted the definition of “employee” in the Ohio constitution and declared the law invalid, thereby eliminating exemptions to Ohio’s minimum wage laws.

John Haight and Christopher Pence were employed as advertising salespeople for Cheap Escape Company dba JB Dollar Stretcher, which published a coupon magazine and website for electronic coupons, and were paid mostly through commissions. In 2012, Haight and Pence sued Cheap Escape alleging they were employees of Cheap Escape and that the company failed to pay them minimum wages each week. Cheap Escape denied Haight and Pence allegations and claimed that as outside sales representatives, Haight and Pence were exempt from Ohio’s minimum wage law and had been paid properly. Haight v. Cheap Escape Co., 2014-Ohio-2447.

The Ohio Fair Minimum Wage Amendment to the Ohio Constitution, approved by voters in November, 2006, states in part that every employer is required to pay their employees a wage of not less than six dollars and eighty-five cents per hour beginning January 1, 2007 with the amount to be adjusted annually. In addition, the amendment provides that future laws may be passed to increase the minimum wage rate and extend coverage of the section, but no laws could restrict any provision of the law. The Amendment defines an employee to have the same meaning as under the Fair Labor Standards Act (“FLSA”). Haight and Pence asserted that they were Cheap Escape’s employees as defined by the Ohio constitutional amendment as well as the FLSA.

After voter approval of the amendment, the Ohio General Assembly enacted a statute which acknowledged that the amendment defined “employee” to have the same meaning as under the FLSA, but also added its own definition of “employee” which included “individuals employed in Ohio, but does not mean individuals who are excluded from the definition of ‘employee’ under the FLSA.” The FLSA specifically excludes outside salespeople from the minimum wage requirements. Hence, the statute excluded outside salespeople from being considered employees of an Ohio employer for purposes of minimum wage laws.

Haight and Pence’s appeal stemmed from their allegation that they were entitled to be paid the Ohio minimum wage even though they were outside salespeople. They alleged that the exemptions for outside sales representatives from the minimum wage requirements set forth in the statute and in the FLSA did not apply under the Ohio constitution. They argued that the definition of “employee” as contained in the amendment to the Ohio constitution was broad and did not exclude employees who are exempt from the federal minimum wage laws. They argued that the statute, by excluding outside sales representatives from minimum wage protection, was unconstitutional. In essence, they argued that by including its own definition of employee in the statute, the Ohio legislature impermissibly narrowed the definition of employee as laid out in the amendment.

The Court of Appeals determined that even if individuals such as salespeople are exempt from the FLSA’s minimum wage provisions, they remained “employees” as defined by the FLSA. The court concluded that the definition of employee is “any individual employed by an employer,” which includes outside salespeople. Hence, the court held that the Ohio legislature impermissibly narrowed the definition of employee in the statute when it excluded outside salespeople from the definition of an employee. Consequently, the court found that the statute was invalid and the judgment of the trial court was reversed. Now, the case will return to the trial court for a determination as to whether or not Haight and Pence should have received minimum wages while employed by Cheap Escape as outside sales representatives.

One judge dissented from the court’s decision, concluding that the statute did not conflict with the constitution because the meaning of employee included the FLSA exemptions. This split among the judges indicates that it is likely that Cheap Escape will appeal to the Ohio Supreme Court for a final decision.

If Cheap Escape does not appeal this decision to the Supreme Court and this decision stands, this case may have far-reaching implications. Ohio employers could lose any minimum wage exemptions for all employees and would be subject to recordkeeping and reporting procedures that currently apply to non-exempt, hourly employees. Some employees may be considered exempt employees for federal wage purposes, but would not be considered exempt employees in Ohio. As a result, employers will need to change their payroll practices and recordkeeping and reporting procedures to include all employees, not only non-exempt employees.


NLRB decisions on “mini-unit organizing”

Posted in Labor Relations

We reported in 2011 about the National Labor Relations Board (NLRB) decision in Specialty Healthcare. That controversial decision opened the door for unions to target small sections of a workforce for union organizing.  For example, in the past, a union trying to organize had to target all similarly-situated employees. In a manufacturing plant that was typically all production and maintenance workers and usually included all blue-collar departments, like shipping and receiving. But, the Specialty Healthcare case opened the door for a union to target smaller groups, like the maintenance group alone, or the shipping and receiving group. Being able to target smaller units for organizing improves a union’s chance for success because there are fewer voters to persuade to sign organizing cards and to vote for a union in an election.

Two recent NLRB cases show that the NLRB’s decisions about mini-unit organizing will be fact-specific and may be difficult to predict. On July 22, the NLRB approved a union’s effort to organize a unit at a Macy’s store in Massachusetts made up only of the cosmetics and fragrance sales workers. Before the dust had settled from the management-side concern about that ruling, the NLRB ruled just last week in a case involving Bergdorf Goodman’s department store that a targeted group made up of only shoe salespeople was not appropriate.  The NLRB recognized that the targeted shoe sales group had been carved out from a larger group of shoe salespersons in the store.

These conflicting decisions illustrate the importance of strategic consideration by employers when establishing departmental structure and reporting lines. Of course, business needs and efficiency must be the primary driving force in deciding how your organization should be structured. But, to the extent that there is some degree of integration among groups of employees, such as cross-training, common supervision, and movement of employees back and forth, the employer’s argument to require unions to target larger, rather than smaller, groups for organizing will be stronger.

Reminder to federal contractors about NLRA Employee Rights poster obligations

Posted in Labor Relations

There is some confusion in the employer community about the obligation to post a notice concerning union organizing rights. Most employers do not have the obligation, but many companies with federal contracts or subcontracts do.

In 2013, as a result of the National Ass’n of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013) and Chamber of Commerce v. NLRB, 721 F.3d 152 (D.C. Cir. 2013) decisions, the National Labor Relations Board (NLRB) rule requiring all private employers to post a notice to employees of their rights under the National Labor Relations Act (NLRA) was invalidated. The NLRB did not seek Supreme Court review. As a result, most employers were let off the hook for the posting obligation. But federal contractors and subcontractors should be reminded that they likely continue to have obligations under Executive Order 13496, issued in 2010, to post this notice to all employees, and this obligation remains effective.

Executive Order 13496 applies to any construction, supply, or service prime contract of $100,000 or more solicited after June 21, 2010 and any subcontract to that prime contract of $10,000 or more.

The primary obligations of Executive Order 13496 are:

  • Physically post the Notice of Employee Rights under the National Labor Relations Act where other employee notices are posted.
  • Include a clause in covered subcontracts and purchase orders setting out the text of the required notice (or incorporating the regulation text by reference) and outlining the posting obligation.
    • To include the clause by reference, the contract or purchase order must cite to “29 C.F.R. Part 471, Appendix A to Subpart A.”
  • Post the notice electronically if the contractor posts employee notices regarding the terms and conditions of employment electronically.
    • Electronic posting requires the contractor to post a link to OLMS’s website containing the employee notice where they customarily place other electronic notices to employees about their employment. This link must be no less prominent than other employee notices and must read “Important Notice about Employee Rights to Organize and Bargain Collectively with Their Employees.”
    • Electronic posting does not substitute for physical posting. Both types of posting are required if electronic posting is applicable.

Audits of E.O. 13496 compliance may be a part of OFCCP desk audits.

A copy of the poster is available here.

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.