Reuters blog archive

from The Great Debate:

Asserting the Senate’s power

A three-judge panel on the D.C. Circuit Court of Appeals last week unanimously ruled that President Barack Obama violated the Constitution when he made recess appointments to the National Labor Relations Board (NLRB) last year.

The court agreed with the argument outlined in an amicus brief submitted by Senate Majority Leader Mitch McConnell (R-Ky.), myself and 40 of our Republican colleagues. We argued that the Constitution does not empower the president to determine when the Senate is in recess.

The court  ruled that any other interpretation of the Constitution would give “the president free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction.”

The Founders established the constitutional separation of powers for a reason. The Senate’s right to provide advice and consent is an important check on the risk of this type of presidential overreach – and one we exercised last January. Yet despite of the court’s unanimous decision, the NLRB recently announced that it intends to ignore the ruling and carry on with business as usual.

from Alison Frankel:

Employee class actions okay, Concepcion doesn’t apply: NLRB

The National Labor Relations Board stood up staunchly for the rights of employees Friday. In an 18-page ruling in a case called D.R. Horton, Inc. and Michael Cuda, the NLRB chairman and two members of the board held that a company may not cut off employees' rights to collective action through private arbitration agreements. The ruling does not say employees are always entitled to litigate claims via class actions, but concludes that "employers may not compel employees to waive their [National Labor Relations Act] right to collectively pursue litigation of employment claims in all forums, arbitral and judicial."

Early reports on the Horton decision have called it a repudiation of the U.S. Supreme Court's June 2011 decision in AT&T Mobility v. Concepcion, which isn't quite right. Concepcion upheld AT&T's right to compel consumers to submit to arbitration even though a California state law seemed to permit them to bring a consumer class action. Shrewd employment lawyers subsequently pounced upon Concepcion (in combination, of course, with Wal-Mart v. Dukes) to make headway in employment class actions against their clients; according to a just-released study on employment class-action litigation by Seyfarth Shaw, Concepcion had already been cited in 215 judicial rulings by the end of 2011. But according to Cliff Palefsky of McGuinn, Hillsman & Palefsky, who advocated for employees' rights in the Horton case, the NLRB correctly drew a distinction between the issues in Concepcion and the real issue confronting employment litigators: an apparent conflict between labor laws and the Federal Arbitration Act, which empowers corporations to enforce private employment-related arbitration agreements.

from Alison Frankel:

NLRB judge: Employees can bitch about their jobs on Facebook

Note to disgruntled employees: you can't be fired for complaining about your job on Facebook. That's the upshot of the first ruling to address employees' use of social media by a National Labor Relations Board judge. Last week, in a case called Hispanics United of Buffalo, administrative law judge Arthur Amchan said HUB violated the National Labor Relations Act when it fired five employees who commiserated about their jobs on Facebook. Judge Amchan's ruling endorsed the NLRB's stance that employees are protected from retribution for job-related postings. "Discussions about the workplace are protected whether they occur at the watercooler or the virtual watercooler," said Laura Lawless Robertson of Greenberg Traurig, who sent out an alert about the NLRB administrative law judge's ruling Friday.

The HUB Facebook posts came in response to an October 2010 Facebook warning from one HUB employee that a co-worker was complaining about people in the housing division. "[She] feels that we don't help our clients enough at HUB," the warning said. "I [have] about had it! My fellow coworkers how do u feel?"