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Labor & Employment Bulletin - July 2014



Supreme Court Finds President Obama's Recess Appointments to NLRB Unconstitutional

On June 26, 2014, in a much anticipated decision, the Supreme Court of the United States held that President Obama's recess appointments to the National Labor Relations Board ("Board") were unconstitutional and, therefore, invalid. In so ruling, the Supreme Court affirmed the D.C. Circuit Court of Appeals' January 2013 decision in Noel Canning v. National Labor Relations Board. (For more information on the D.C. Circuit's opinion, see our Labor and Employment Bulletin from March 2013 at starneslaw.com). The Supreme Court's decision effectively invalidates hundreds of decisions issued by the NLRB between January 2012 and July 2013.

President Obama nominated three individuals to fill the Board's vacancies in 2011, but the Senate delayed action on the nominations. Because the NLRB lacked a quorum, it could not lawfully exercise its power. As a result, on January 4, 2012, President Obama invoked the Recess Appointments Clause and appointed three members to the Board. The Constitution provides the President authority to make appointments without U.S. Senate confirmation to "vacancies that may happen during the recess of the Senate." However, at the time of President Obama's appointments, the U.S. Senate was meeting in pro forma sessions every three business days. In Noel Canning, the employer challenged the validity of an unfavorable Board decision by arguing that the recess appointments were not legally valid, and, as a result, the Board's actions were not binding. The D.C. Circuit Court of Appeals agreed.

Although the Supreme Court rejected the D.C. Circuit's rationale, the Court ultimately agreed with the D.C. Circuit's conclusion. The Supreme Court reasoned that a recess of three days was too short to trigger the President's power under the Recess Appointments Clause. Specifically, the Court found that a recess of less than ten days is presumptively too short for the President to invoke this power. Accordingly, because the Court found the President's recess appointments to be invalid, it determined that the Board did not have the necessary quorum to act in its decision against Noel Canning.

Although the practical result of this decision is still unclear, it would appear as though any cases decided by the Board while the three recess-appointees acted as members-from January 4, 2012 to July 31, 2013 -are now invalid and will have to be revisited by the current Board. Many of these invalidated decisions addressed significant Board precedent, including the lawfulness of workplace social media policies and an employer's obligation to provide unions with witness statements in disciplinary proceedings. However, given the Democratic majority on the current Board, it is likely that many of the prior, now invalid, decisions simply will be reconsidered and reaffirmed by the Board with the necessary quorum.

-- Breanna Young

1.  All five current Board members were confirmed by the Senate as of July 30, 2013, so actions taken by the Board after that date will not be affected by this decision.


Yearly Review of the EEOC's 2013 Enforcement and Litigation Statistics

The Equal Employment Opportunity Commission recently released its 2013 enforcement and litigation statistical report detailing the most common types of charges filed and the amount of monetary recoveries obtained through the administrative process. The key takeaways for employers are detailed below:

  • The overall number of charges filed with the EEOC decreased 5.7 percent compared with 2012. However, despite this decrease in charges filed, the EEOC recovered $372.1 million through the administrative process. This is the highest annual recovery in EEOC history.
  • For the fifth year in a row, retaliation was the most frequently cited basis for a charge, constituting 41.1 percent of all charges filed. Retaliation charges, both in overall number and percentage of all charges, rose since the previous year.
  • After retaliation, the most frequently cited bases for charges of discrimination were race (35.3%), sex (29.5%), and disability (27.7%).
  • Overall, the percentage of "reasonable cause" findings dropped very slightly from 2012. The most common types of charges likely to result in a "reasonable cause" finding were charges brought under the Genetic Information Non-Discrimination Act (GINA) and sexual harassment charges.
  • In 2013, the EEOC filed 131 merit lawsuits, which represents an increase of about 7 percent compared to 2012. However, this number is still way below the historical average for the EEOC. By way of example, during the period 1997 through 2012, the EEOC averaged 323 merit lawsuits per year.

These statistics demonstrate to employers that, although the overall number of charges filed has decreased, the number of retaliation charges has increased. Moreover, the financial hit an employer could face from a charge has increased to record levels. These trends underscore the importance of providing employees with proper training on retaliation and how to conduct a thorough investigation following an employee complaint of unfair treatment.

-- Allison Adams


EEOC Offers New Enforcement Guidance on Pregnancy Bias Ahead of Supreme Court Ruling

On July 14, the U.S. Equal Opportunity Employment Commission ("EEOC") issued new enforcement guidance (along with a Q & A sheet and fact sheet for small businesses) on pregnancy discrimination in the workplace, referring to the measure as the first comprehensive update of its pregnancy discrimination guidance since 1983. The guidance interprets the Pregnancy Discrimination Act of 1978 ("PDA"), which amended Title VII to prohibit discrimination in employment based on "pregnancy, childbirth or other related medical conditions." The EEOC explains that the PDA's protections are not just limited to employees and applicants who are currently pregnant, however, the Act also applies to past pregnancy, potential or anticipated pregnancy, and medical conditions related to pregnancy or childbirth. The EEOC's new guidance also affords protections under the PDA similar to those under the Americans with Disabilities Act.

The EEOC supported is position by reasoning that while pregnancy itself is not a disability, the 2008 amendments to the Americans with Disabilities Act ("ADAAA") expanded the definition of disability to encompass pregnancy related conditions. As a result, the EEOC read in the reasonable accommodation provisions of the ADAAA to apply to pregnancy-related impairments such as back pain, gestational diabetes, and preeclampsia. Thus, it stated that employers may not discriminate in the reasonable accommodations and benefits it offers to pregnant employees from those it offers to nonpregnant employees who are similar in their ability or inability to work.

For example, under the EEOC's reading, the PDA requires an employer to offer temporary light duty to a pregnant employee with work restrictions if the employer provides such an accommodation to nonpregnant employees similar to the pregnant employee in their ability or inability to work. Under the PDA, however, an employer may not refuse light duty to a pregnant employee in this situation even if the employer's light duty policy is otherwise only applicable to workers injured on the job. Similarly, an employee with pregnancy-related conditions must be allowed to take leave on the same terms and conditions as nonpregnant employees similar in their ability or inability to work. Moreover, an employer may not force an employee to take leave simply because she is pregnant, as long as she is able to perform the job. Further, the EEOC also suggests that additional protections from the Family and Medical Leave Act and certain provisions from the Affordable Care Act, such as contraception coverage, may also be afforded to pregnant employees.

Some, including the two Commissioners who voted against the guidance, have questioned both the timing and the substance of the move. Just two weeks before, on July 1st, the United States Supreme Court granted certiorari to hear Young v. United Parcel Service, Inc., to review a Fourth Circuit decision that found the PDA did not require employers to provide more favorable treatment to pregnant employees than nonpregnant employees who were similarly situated in their ability or inability to work. In her suit, Young, claimed UPS discriminated against her when she had to take unpaid leave because of weight lifting restrictions imposed during her pregnancy and was not provided the same accommodations that were offered to nonpregnant employees with similar limitations. In defense, UPS maintained that it only offered accommodations to workers injured on the job, those who qualified for ADA accommodations, and those who lost their U.S. Department of Transportation certification, none of which applied to Young. Both the Fourth Circuit and the district court below agreed with UPS, dismissing Young's claims.

The EEOC's stance seems to conflict with the Fourth Circuit's holding in Young, thus it stands to be potentially mooted pending the outcome of the Supreme Court's decision next term. Until then, employers should be cognizant of the EEOC's recent statements, as they make clear the EEOC intends to increase its scrutiny of pregnancy based discrimination.

-- Chris Vinson


E-Cigarettes in the Workplace: Productivity Boost or Barrier?

As the popularity of electronic cigarettes continues to rise, employers across the country are wrestling with how to best approach "vaping" in the workplace. Proponents of vaping in the workplace argue that it increases productivity as they do not have to leave their desks for smoke breaks; others argue that the odor and byproduct of vaping is only another unnecessary office distraction. No matter your personal view on vaping and e-cigarettes, it is time for all employers to consider enacting policies to address the use of e-cigarettes in the workplace before employees begin to start testing your boundaries.

Electronic cigarettes ("E-cigarettes" or "E-cigs") are battery-powered devices that turn chemicals such as nicotine, propylene glycol, clycerin, and nitrosamines into an aerosol (vaporized liquid) that is inhaled by the user. Some e-cigarettes even contain fruit and candy flavors, such as cherry, chocolate, gummy bear, and bubble gum. "Vaping," the electronic equivalent of smoking e-cigarettes, is a $2 billion industry, even though the health impacts and side effects associated with vaping are largely unknown and highly debated. As with any trendy new electronic device or social media network, employees are testing employers' boundaries by attempting to vape in the workplace. Accordingly, instead of joining the debate on the "dangers" or "benefits" of e-cigarettes, this brief article will seek only to provide helpful advice to employers to assist in your tackling of "vaping in the workplace."

First, it is helpful to understand the state of the law relating to e-cigarettes. The Food and Drug Administration ("FDA") has not evaluated any e-cigarettes for safety or effectiveness, and, currently, only e-cigarettes that are marketed for therapeutic purposes are regulated by the FDA Center for Drug Evaluation and Research. Regular e-cigarettes (those not marketed for therapeutic purposes) are not yet considered drug or medical devices under federal law; therefore, they are not currently subject to FDA's import limitations. However, the FDA Center for Tobacco Products does regulate cigarettes, cigarette tobacco, roll-your-own-tobacco, and smokeless tobacco, and the FDA has issued a proposed rule that would extend its tobacco authority to cover additional products, like e-cigarettes. The agency is accepting comments on the proposed rule through August 8, 2014. This proposed rule shows that the FDA intends to regulate e-cigarettes like it does regular cigarettes-not as drugs, but as tobacco products.

There is no overarching federal law against vaping in the workplace-it has been left up to the individual states and employers. Currently, three states have banned e-cigarettes in workplaces, bars, and restaurants: North Dakota, New Jersey, and Utah. In contrast, approximately twenty-eight states and the District of Columbia ban smoking traditional cigarettes at work. Various other states regulate e-cigarette use in other venues such as public educational facilities, State agency buildings, and Department of Corrections facilities. In addition, many cities have ordinances banning e-cigarettes in public places. For example, according to the American Nonsmokers' Right Foundation, the following municipalities in Alabama have ordinances restricting e-cigarette use in 100% smokefree venues: Palmer, Anniston, Bessemer, Clay, Creola, Fultondale, Midfield, Monroeville, Troy, and Vestavia Hills.

Given the current state of the law, most employers are generally free to create their own policies to address the use of e-cigarettes and vaping in the workplace. As with any other policy governing non-work activities in the workplace - such as the use of cell phones and social media - employers should base any e-cigarettes policy on a legitimate business reason and should consider all factors in making such a decision, including employee morale and productivity. Also like other workplace policies, there are numerous ways to craft a policy that best fits an employer's operations and daily needs. For instance, an employer can simply revise its current no smoking policy to include language referencing e-cigarettes or can create a stand-alone e-cigarettes policy that addresses where and when vaping is allowed. As always, the best policies are clear, concise, and practical, and employers should provide employees with reasonable notice before the policies take effect. If you have any questions regarding the implementation of an e-cigarettes policy in your workplace, we will be happy to assist you in the process.

-- Breanna Young


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