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Tuesday, 05 February 2013 14:22

Appointments of NLRB Members Held Constitutionally Invalid

In my November 2012 Employment Law Alert I wrote about a recent National Labor Relations Board (NLRB) decision that found “at will” employment waiver language unlawful under the National Labor Relations Act (NLRA). In my December 2012 Employment Law Alert I wrote about another recent NLRB decision that found blanket confidentiality policies and practices during investigations may be unlawful under the NLRA. These decisions reflected significant shifts in Board practice and long-standing precedent. Additional uncertainty was added to the mix a few days ago.


On Friday, January 25, 2013, the Court of Appeals for the D.C. Circuit issued a decision that held President Obama’s purported NLRB recess appointments in January 2012 are constitutionally invalid. The immediate effect of this appellate decision is to deprive the NLRB of a quorum, and places into question the validity and applicability of all decisions issued by the NLRB, beginning in 2012 and continuing until the NLRB has a quorum of members who the Senate has confirmed through traditional constitutional methods. In light of the significance of the decision, it is a virtual certainty that this decision will be appealed to the U.S. Supreme Court which will likely decide to review it.


I will be continuing to monitor this employment/labor law development and will issue further Alerts as the matter continues to develop. In the meantime, if you would like to discuss how this or other developments may impact your business, please do not hesitate to contact me.


Attorney Peter Culp

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