On Friday, January 25, 2013, the United States Circuit Court of Appeals for the District of Columbia Circuit determined that President Barack Obama's recess appointments to the National Labor Relations Board (NLRB) in January 2012 were invalid because the appointments were not duly approved by the Senate and because the Senate was not technically in recess. Thus, the court vacated the NLRB's unfair labor practice determination because it lacked a legitimate quorum of three members. See Canning v. NLRB, Case No. 12-1115.
This ruling potentially calls into question the validity of hundreds of decisions issued by the NLRB over the past year, which leaned heavily toward employee rights and covered a wide range of topics from social media to at-will policies to arbitration agreements and the confidentiality of employee investigations. It is likely that this matter will reach the Supreme Court as the NLRB has already pledged to appeal it, and it conflicts with a ruling by the 11th Circuit Court of Appeals in Evans v. Stephens, +387 F.3d 1220 (11th Cir. 2004), regarding recess appointments for federal judges.
In light of the fact that this decision could have significant ramifications for employers on any opinions - particularly those in the DC Circuit - issued by the NLRB on or after January 4, 2012, employers should proceed cautiously and continue to be alert for further developments with this case.
