NLRB on the Ropes: D.C. Circuit Holds Obama "Recess" Appointments to the NLRB Are Unconstitutional

*By Patrick J. Hoban
 
Today, the United States Court of Appeals for the D.C. Circuit ruled that President Obama’s recess appointments of three members to the National Labor Relations Board (“NLRB”) in January 2012 violated the United States Constitution. The Court, in Noel Canning v. NLRB, No. 12-1153 (January 25, 2013), ruled that the President unconstitutionally circumvented the Senate when he appointed Sharon Block, Terence Flynn, and Richard Griffin to the Board. As a result, every NLRB decision issued since January 4, 2012, is likely to be vacated because the NLRB did not have the three member quorum required to operate.

The President appointed Block, Flynn, and Griffin to the NLRB on January 4, 2012, as “recess appointments.” Because NLRB members are officers of the U.S. Government, the Constitution requires that the President submit nominations for the NLRB to the U.S. Senate for confirmation. The Constitution allows the President to make appointments during “the Recess” of the Senate, which has historically been understood as times when the Senate is unavailable to consider the nominee. On January 4, 2012, the Senate was operating pursuant to a unanimous consent agreement which provided that it would meet in sessions every three business days from December 2011 through January 2012. During this time, the Senate conducted some limited business, including convening the second session of the 122nd Congress on January 3, 2012.

In February 2012, an NLRB panel including two members appointed during “the recess” without Senate approval ruled that employer Noel Canning, a bottler and distributor, violated the National Labor Relations Act. Noel Canning appealed the decision and asserted that the NLRB’s decision must be vacated as it did not have a lawful, constitutionally legitimate quorum.

The D.C. Circuit agreed, held that the President’s recess appointments were unconstitutional, and vacated the NLRB’s decision. The Court noted that, “Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.” The Court further found that, under the Constitution, “recess” refers to the intercession recesses - or the period between sessions of the Senate when the Senate is, by definition, not in session and is unavailable to consider presidential nominations. As the Court explained, the President made the “recess” appointments on January 4, 2012, the day after Congress began a new session and not when the Senate was in “the recess.” The Court vacated the NLRB’s decision against Noel Canning because the Board did not have the minimum of three members needed for a quorum when the decision issued.

The implications of this decision are enormous. The Obama Administration will almost certainly appeal to the United States Supreme Court. If the decision stands, then hundreds of decisions which the Board has issued over the past year would become invalid. It also would leave the Board with just one validly appointed member out of five, essentially shutting it down until a legitimate quorum of three members exists.

Among the Board decisions which are subject to challenge under today’s ruling are:

• Costco Wholesale Corp., 358 NLRB No. 106 (September 7, 2012) (employer policy which prohibits employees from making statements on social media that could damage the company or other employees’ reputations unlawful);
• Knauz BMW, Case No. 13-CA-046562 (September 28, 2012) (employer policy proscribing employee messages and communications potentially critical of the company deemed unlawful);
• WKYC-TV, Inc., 359 NLRB No. 30 (December 12, 2012) (contractual dues deduction provisions continue after the expiration of a collective bargaining agreement);
• Alan Ritchey, Inc., 359 N.L.R.B. No. 40 (2012)(December 14, 2012) (employers must give notice and offer to bargain before enforcing discretionary discipline on employees of a newly-certified union);
• Supply Technologies, LLC, 359 N.L.R.B. No. 38 (2012) (December 14, 2012) (mandatory dispute resolution program that does not expressly state that employees retain the right to file NLRB charges unlawful.)
• Piedmont Gardens, 359 NLRB No. 46 (December 15, 2012) (employer blanket policies protecting confidential employee investigation statements unlawful).

Moving ahead, and pending the outcome of an appeal, any party – employers and unions – against whom the NLRB has issued a decision since January 4, 2012, has grounds to vacate the decision based on the NLRB’s lack of legitimate legal authority to issue it. Additionally, any party with a case before the NLRB should include arguments that, absent a legal quorum, the NLRB is without power and authority to act. Zashin & Rich Co., L.P.A. will provide updates on the NLRB’s struggles with legitimacy as they develop.

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.

When is a Child a Child? Department of Labor Issues New Guidance Concerning FMLA Leave for Children 18 Years and Older

*By Stephen S. Zashin, Esq.
 
The Department of Labor (“DOL”) recently issued an Administrator Interpretation Letter that addressed when parents may take leave under the Family Medical Leave Act (“FMLA”) to care for their adult children who have a serious health condition. Under the FMLA, parents of adult children may take FMLA leave to care for an adult child when the adult child suffers from a serious health condition and is also incapable of self-care because of a physical or mental disability. Previously, the DOL issued two Opinion Letters regarding this issue which led to some confusion. As a result, the DOL received several inquiries concerning whether the timing of the onset of the adult child’s disability was relevant to determining the parent’s entitlement to FMLA leave to care for the adult child. Ultimately, the DOL concluded that the timing of the onset of a disability was not relevant to determining the parent’s entitlement to take FMLA leave.

The Family Medical Leave Act (“FMLA”) provides that an employee may take FMLA leave to care for certain family members, including a “son” or “daughter,” who has a “serious health condition.” Under the FMLA, a son or daughter is defined as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is – (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental of physical disability.” Based on this definition, employees who meet all of the requirements of the FMLA are entitled to care for their adult children who are 18 years or older when the child is also “incapable of self-care because of a physical or mental disability.”

The DOL issued an Opinion Letter in 1994 and concluded that “the age on which the child became disabled is not a factor for determining an eligible employee’s entitlement to leave.” See Wage and Hour Opinion Letter FMLA 51. Later, the DOL issued an Opinion Letter in 2003 and emphasized that a child with a disability has a continued need for care in adulthood. See Wage and Hour Opinion Letter FMLA 2003-2. This Opinion Letter suggested that the child must have been disabled prior to turning 18 years of age in order to trigger the entitlement to FMLA leave under this provision. Within its recent Administrator Interpretation Letter, the DOL clarified that “It is the Administrator’s interpretation that the age of the onset of the disability is irrelevant….” Instead, there are four requirements a parent must meet in order to take leave to care for an adult child: (1) the adult child has a disability as defined by the Americans with Disabilities Act (ADA); (2) the adult child is incapable of self-care due to that disability; (3) the adult child has a serious health condition; and, (4) the adult child is in need of care due to a serious health condition.

The DOL also took the opportunity to address the meaning of the term “disability.” The DOL cited to the language of the ADA and noted that the definition of the term disability “shall be construed in favor of broad coverage.” The DOL noted that there is not minimum duration required for an impairment to be considered a disability. Indeed, the DOL, citing to the ADA, noted that even an impairment expected to last less than 6 months can constitute a disability.

The DOL illustrated these principles in a two hypothetical examples. First, the DOL considered a 37-year old daughter who suffered a shattered pelvis in a car accident. The daughter required hospital care for two weeks and then was unable to walk long distances for 6 months and needed help bathing, dressing and maintaining her residence. The daughter developed the condition well after she turned 18 years of age. The DOL noted that, assuming all the other requirements of the FMLA were met, the parent could take FMLA leave to care for the daughter because the daughter: (1) had a disability, (2) was incapable of self-care, (3) had a serious health condition, and (4) needed care due to the serious health condition. In another hypothetical example the DOL considered a 25-year old son who has diabetes, lives independently and does not need assistance caring for himself. The DOL concluded that the son had a disability, but that the parent was not entitled to FMLA leave because the son could care for himself. Although, the DOL noted that if the son was unable to walk and care for his own hygiene due to complications related to his diabetes, then the parent would be entitled to FMLA leave.

These examples illustrate that the new clarifying interpretation by the DOL has expanded greatly the circumstances upon which a parent can take leave for the serious health condition of an adult child. As a result, employers must reevaluate their policies and the application of their policies to comply with this new clarification.

* Stephen Zashin, an OSBA Certified Specialist in Labor and Employment Law and the head of the firm’s Employment and Labor group, regularly counsels employers on leave of absence and FMLA issues and defends employers in FMLA litigation. For questions about employee leaves of absence or the FMLA, please contact Stephen (ssz@zrlaw.com) at 216.696.4441.