July 24, 2014

Update: National Labor Relations Board (NLRB) to Appeal Recess Appointment Case to the U.S. Supreme Court

Earlier this year, a unanimous three-judge panel of the United States Court of Appeals for the District of Columbia held that President Barack Obama’s recess appointments of three National Labor Relations Board (NLRB) members exceeded the President’s constitutional authority.  The ruling called into question hundreds of decisions rendered by the NLRB since the recess appointments were made, including decisions affecting non-union workplaces.

The NLRB has announced that it was bypassing its opportunity to have the case reconsidered by the full D.C. Circuit Court and instead is planning to file an appeal to have the case heard by the U.S. Supreme Court.  The NLRB’s petition must be filed with the Supreme Court by April 25, 2013, meaning that it will be unlikely for the Supreme Court to hear the case (assuming it grants the NLRB’s petition) before the Court’s next term begins in October.

Until the Supreme Court renders a final decision, we recommend 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.

© Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2014. All rights reserved.

About the Author

Rachel Gebaide, labor, employment, attorney, Lowndes, law firm

Rachel D. Gebaide is a Partner in the firm and Chair of the Labor and Employment Law practice. Ms. Gebaide represents employers in federal and state courts and before administrative agencies in all matters pertaining to employment law including, without limitation, claims arising under Title VII, Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), Uniformed Services Employment and Reemployment Rights Act (USERRA), Worker Adjustment and Retraining Notification Act (WARN), and the Fair Labor Standards Act (FLSA).



About the Author

Timothy Haughee, corporate, securities, attorney, Lowndes, law firm

Tim Haughee is an associate with the firm. His legal practice focuses primarily on public and private securities transactions, private investments, and corporate governance matters. Tim also has significant litigation experience, with an emphasis on commercial litigation, family law litigation, and creditor's rights. Finally, Tim has also handled real estate transactions, commercial transactions, and game promotions law (sweepstakes and contests) matters.


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