Supreme Court Hears Argument on Whether NLRB Actually Still Exists

Yesterday morning, the U.S. Supreme Court heard oral argument in an important case at the intersection of labor law, statutory interpretation, and administrative law. In New Process Steel, L.P. v. NLRB, on appeal from the Seventh Circuit Court of Appeals, the Court will decide whether a two-member National Labor Relations Board (NLRB or Board) has the authority to engage in adjudication on behalf of the Board. The Board has operated with only two members for over two years, since the appointments of two Board members expired on December 31, 2007. Just before that time, effective midnight, December 28, 2007, the Board delegated all of its powers to a group of three members to continue to issue decisions and orders as long as a quorum of two members remained. Since that time, the two Board members remaining, acting as a quorum of the group, have issued over 500 decisions. 

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Supreme Court Takes Public Employee Informational Privacy Case

4United States Supreme Court 112904 The United States Supreme Court granted cert today in the public employee privacy case of NASA v. Nelson, No. 09-530 (petition for cert here). The case will consider whether NASA, a federal agency, violated the informational privacy rights of employees, who worked in non-sensitive contract jobs, by asking certain invasive questions during background investigations.

General Kagan, for the government, filed the petition for cert and is asking the Court to overturn the 9th Circuit decision which directed a district court to issue a preliminary injunction on behalf of contract workers at NASA’s Jet Propulsion Laboratory (JPL) operated by the California Institute of Technology under a contract with the federal government.  The General maintains that the privacy expectations of the employees are minimal because they have are in the government employment context, these are standard background forms that the government is using, and the Privacy Act of 1974 protects this information from disclosure to the public.

The case was originally brought in 2007 by twenty-eight scientists and engineers employed as contractors at JPL on behalf of a potential class of 9,000 employees that NASA classifies as low-risk employees. Questions included in the background check ask about “any treatment or counseling” for illegal drug use, and forms issued to references seek “adverse information” about the workers’ employment, residence, and activities regarding violations of the law, financial integrity, abuse of alcohol or drugs, mental or emotional stability, general behavior, and “other matters.”

This will be an interesting case for a number of reasons.

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Milwaukee Sick Leave Ordinance May Be Headed to State Supreme Court

Milwaukee Hat tip to CCH Technical Answer group for an update on the status of the Milwaukee Sick Pay Ordinance that was passed by referendum in November 2008, only to be invalidated by a state trial court judge.  According to the posting, the Milwaukee paid sick leave case has now been referred to the state supreme court:

On February 18, 2010, the Wisconsin Court of Appeals asked the Wisconsin Supreme Court to take up the constitutionality of Milwaukee’s paid sick leave mandate.

In June 2009, Milwaukee County Circuit Court Judge Thomas Cooper ruled that the city’s paid sick leave ordinance, which provided up to nine paid sick days per year based on the number of hours worked and the size of the business, was “invalidly enacted and unconstitutional.” (Metropolitan Milwaukee Assoc. of Comm. v. City of Milwaukee, Milwaukee County Circuit Court, No. 08cv018220, June 12, 2009). 9to5, the National Association of Working Women, appealed Cooper’s ruling. The supreme court has been asked to decide whether the ballot question put before the voters of the City of Milwaukee complied with the statutory requirement that it contain “a concise statement of [the ordinance’s] nature” — whether voters were informed of the contents of the ordinance . . . .

Nearly 70 percent of . . . voters approved the referendum for paid sick leave in the November 2008 election.

Marcia McCormick (St. Louis) has written before on the ordinance. I personally think the law was properly enacted and constitutional.  It will be interesting to see whether the Wisconsin Supreme Court takes the case.

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