United States Supreme Court Issues Decision In Noel Canning; Ruling Invalidates Over 700 NLRB Decisions
On June 26, 2014, the United States Supreme Court finally issued its long-awaited ruling in Noel Canning. As previously reported in The Fast Laner here and here, several courts had ruled that the decisions of the National Labor Relations Board (NLRB) between January 4, 2012 through July 31, 2013 were invalid because two of the NLRB Members at the time were unconstitutionally appointed to their positions by President Obama. The justices of the United States Supreme Court unanimously agreed with the lower courts and invalidated more than 700 decisions issued by the NLRB during this period of time, including many significant cases affecting both union and non-union employers. These cases include decisions in which the NLRB: (a) significantly limited the right of employers to impose confidentiality obligations during workplace investigations, (b) significantly limited non-solicitation rules in the workplace, (c) mandated that employers continue to deduct union dues from employees’ paychecks after the expiration of a collective bargaining agreement, (d) significantly limited employer oversight of employee behavior on social media, and (e) significantly limited the scope of confidentiality agreements that affected the ability of employees to share personal information with third parties. Although these decisions are now null and void, the present NLRB (whose constitutional validity is not in question) has already indicated that it will reconsider these decisions. and it is likely many of them will be reinstated. However, it remains an open question as to when these decisions will be reconsidered and whether the NLRB will, in fact, simply rubber stamp the decisions the Supreme Court invalidated in Noel Canning. Therefore, employers should not change their workplace policies to reflect a pre-January 4, 2012 world in the expectation that these decisions will remain invalid over the long-term. Instead, employers should continue to monitor the NLRB’s reaction to Noel Canning. The Fast Laner will follow the NLRB’s response to this decision and provide updates as warranted.