Despite the ruling from the DC Circuit Court of Appeals that the NLRB cannot operate because it does not have a quorum of members, the NLRB issued a statement last week stating that it would continue to operate.  Specifically, on January 25, 2013, Chairman Mark Pearce issued the following statement:

The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.

At this point, the NLRB has two options:   (1) request an en banc hearing with the DC Circuit, which would include all judges from the DC Circuit or (2) file an appeal to the US Supreme Court.  Given these two options, it is more likely that the NLRB will file an appeal to the Supreme Court, because at least three of the DC judges have already ruled against the NLRB.  I will update this blog once the NLRB makes its decision.

On January 25, 2013, the Court of Appeals for the District of Columbia (“D.C.”) effectively held that the NLRB could not operate, because it did not have enough members.

Specifically, the court ruled that three members of the Board were not legally entitled to serve on the NLRB, because their appointments were invalid.  President Obama tried to make the three appointments during a time when the Senate was conducting pro forma sessions, and argued that the Senate was technically in a “recess.”  By law, the President has the authority to make “recess appointments” that do not need confirmation of the Senate.

The court, however, ruled that the appointments were not made during a recess, because the Senate was still conducting businesses through pro forma sessions.  Therefore, the three appointments should have really been nominations that needed to be approved by the Senate.  Because the three appointments did not receive Senate confirmation, they were technically not authorized to serve as NLRB members.

The NLRB is composed of five members and, by law, cannot issue decisions or take other action unless it has a valid three-member quorum.  After the three appointments were invalidated by the court, the NLRB was left without a quorum of members.  With a quorum, the NLRB cannot operate.  Therefore, under the D.C. court’s decision, the NLRB cannot operate.

This ruling is very significant, because Federal law provides that any decision by the NLRB can be appealed to either (1) the Court of Appeals for the district you are in or (2) to the D.C. Court of Appeals.  Therefore, every decision by the NLRB can conceivably be appealed to the D.C. Circuit.  In fact, any attorney who does not file such an appeal to the D.C. Circuit should think about taking a vacation from work, because filing an appeal anywhere else would be almost be committing malpractice at this point.

You can read the court’s (lengthy) decision here:  Canning v. NLRB.

Dear Readers,

I apologize for the lack of updates in the past couple months, but I do have some news to share with you.

First things first, I will still be writing this blog.  In fact, I actually hope to update this blog more regularly than before, so please check back often or subscribe to this blog using either the RSS feed or email subscription button on the top right corner of this page.

Secondly, in February 2012, I left private practice to take a position as the Assistant General Counsel and a Sr. HR Consultant with the HAWAII EMPLOYERS COUNCIL (“HEC”), located here in Honolulu, Hawaii.  HEC is Hawaii’s premier employers’ resource for human resources management and labor relations. Some of the services we provide to our members include HR/labor consultation, supervisory training and seminars, handbooks & policy review and drafting, labor negotiations, union counter-organizing, unemployment hearings, weekly newsletters, salary surveys, wage and salary programs, job descriptions, sample forms, and legislative updates on labor and employment laws and regulations…just to name a few.

I am very excited about my new position at HEC, because it gives me the opportunity to help employers manage their workforce in the best way that I know how – by being proactive.  I’ve mentioned this before on my blog and in seminars, but it’s worth repeating…the best (and most cost-effective) way to handle employment law disputes is to prevent them from happening in the first place.  Therefore, when it comes to employment law matters, I’ve adopted the motto made famous by Vince Lombardi:  “the best defense is a good offense.”

While I was in private practice, I had countless employers call me or my firm for advice on how to handle an employment situation that had gone wrong.  In some cases, the employer was being sued by a current or former employee, and facing possible payment of a hefty settlement or judgment.  In other cases, the employer was being investigated or audited by the state and/or federal departments of labor, and facing major penalties and fines.  In either case, the employer was also looking at paying high legal fees to have an attorney (or sometimes, several attorneys) represent them.

In the vast majority of those instances, the employers made inadvertent mistakes, and the problems could have been prevented or avoided in the first place.  Unfortunately for the employer, they ended up taking a reactive approach to the problem, and sought counsel only after a problem had arisen and they were facing a lawsuit, audit, or investigation.  Here at HEC, we take a proactive approach to such situations; that is, we assist employers in navigating their way through complexities of labor and employment law and try to avoid problems from arising in the first place.

As a supporter of all businesses here in Hawaii – big and small – I hope that one day all employers will learn to take a proactive approach towards employment matters with the goal of avoiding lawsuits, audits, and/or investigations.  And while I surely understand that litigation is sometimes unavoidable, there are many instances where taking that proactive step in addressing employment situations end up being the best defense – because you prevent problems from happening in the first place.  That is why I believe in being proactive when it comes to employment law matters, and why I say that, in employment matters, the best defense is a good offense…

Once again, thank you for reading this blog.

Ryan

Here is a press release from the National Labor Relations Board regarding the requirement for posting the new employee rights poster in the workplace:

The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.

You can read more about the NLRB’s employee rights poster in an earlier blog post here and here.  You can read the NLRB’s full press release here.

‘Tis the season for company-sponsored holiday parties.

Holiday parties are an excellent way for employers to boost employee morale, build camaraderie, and celebrate a successful year of business.  At the same time, however, employers should be cautious about the pitfalls that throwing a holiday party can bring.

Alcohol Issues

Employers should take caution when serving alcohol at a company-sponsored holiday party.  First and foremost, employers should make sure that somebody is checking the ID’s of anybody who consumes alcohol.  The purpose of checking ID’s is to avoid serving alcohol to a minor.

Second, employers should also make sure that any individual who is visibly intoxicated is not served any more alcohol.  The purpose of this is to avoid “dramshop” type liability for anybody who drinks at a company-sponsored party and then attempts to drive afterward.  It is also a good idea to provide several non-alcoholic drink options, so guests don’t feel like alcoholic drinks are their only option.

Third, employers should also provide guests with alternative forms of transportation if they are unable to drive, such as cab rides or designated drivers.

Fourth, in order to avoid some of the problems mentioned above, employers should remind employees (and their guests) to drink responsibly.

Finally, employers should also review their insurance policies to determine if they can serve alcohol at a company-sponsored party in the first place.

Sexual Harassment Issues

Oftentimes, when employees attend company-sponsored parties, they forget they are still in a work-related setting.  Once you add some alcohol into the mix, there is a potential that employees may engage in conduct that would violate a company’s anti-sexual harassment policy.  Therefore, employers should make sure to remind employees that the party is work-related, and that all workplace rules still apply at the party.

For example, while it may be festive to have somebody dressed in a Santa Claus suit during the event, employees should not be “sitting on Santa’s lap” because such behavior could be deemed inappropriate under Hawaii and Federal sexual harassment laws.  As another example, employees should be reminded to dress appropriately, so that they don’t dress in a manner that could be deemed inappropriate for a work-related event.

Other Issues

Employees should be reminded that the holiday parties are completely voluntary, and therefore, they are not required to attend the event.

Finally, employers should weigh the pros and cons of having a holiday party on a weekday versus the weekend.  If the party is on a weekday, the employees might not drink as much alcohol or get too rowdy, which alleviates some of the concerns above.  On the other hand, if employees do drink too much alcohol or stay up late, they might be unproductive at work the next day.  If the party is on a weekend, employers do not have to worry about employees’ loss of productivity on the day after the party, but there is a high likelihood the employees will consume more alcohol than they would on a weekday.