Mhlnews 3732 Supremecourt

Obama v. Supreme Court

Jan. 20, 2015
Given President Obama's practice of implementing policies administratively when he can't get Congress to pass legislation he wants, it may not surprise you to learn that since 2012 the U.S. Supreme Court has overturned his actions no fewer than 13 times. 

What may surprise you is that all of these reversals were unanimous, including his own two appointees, Justices Sonia Sotomayor and Elena Kagan, voting against him.

For employers, the most notable of these decisions was the Noel Canning case, which overturned the President's appointment of three members of the National Labor Relations Board (one of whom is the now current NLRB general counsel Richard F. Griffin Jr.). Obama claimed he had the right to make these appointments because the Senate was not in session, which thus made them recess appointments, which are allowed by the Constitution. 

Republican senators asserted that in fact no such recess had taken place and the High Court agreed. This meant that when a legally constituted board was seated later, the NLRB had to scramble to revote in 200 cases that were decided during the year when the recess-appointed board members had been voting illegally.

The court has been busy considering other cases of interest to employers. On Dec. 9 the Supreme Court ruled unanimously that warehouse workers employed through a temp staffing firm did not have to be paid for time spent going through security screenings, because those screenings were not integral and indispensable to the employees' principal warehouse activities. 

In December the Supreme Court also heard oral arguments in Young v. United Parcel Service, which will decide whether an employer who offers light-duty work to injured employees—but not all employees with physical limitations—also must provide work alternatives to pregnant employees. 

However, after the Supreme Court agreed to hear the case, the EEOC issued a new guidance on pregnancy requiring employers accommodate pregnant workers, using wording exactly mirroring facts cited by the plaintiff in the UPS case. Some see the EEOC guidance as an attempt to moot any decision reached by the Supreme Court.

Another case, Mach Mining v. EEOC, will decide whether and to what degree the commission must offer to negotiate and conciliate discrimination claims against an employer before taking them to court. The Supreme Court's decision will determine how aggressive the EEOC will act in the future towards employers during the conciliation process.

In EEOC v. Abercrombie & Fitch Stores the court will decide whether an employer is entitled to specific notice of a religious practice—in this case, the wearing of a head scarf—from a job applicant before having the obligation to accommodate her. 

The female plaintiff was interviewed by the store while she was wearing a Muslim headscarf, called a hijab. However, she did not inform the employer that she was a practicing Muslim or ask about whether the headwear would be an issue. When she was not hired because of the hijab, her failure to inform the employer about her need to wear it created a Catch 22 situation for the company because federal law also prohibits employers from asking applicants about their religious beliefs or practices.