By Rudman Winchell Attorney Matthew Cobb
June tends to be a busy time of year for the United States Supreme Court and this year was no exception. The Court issued four decisions in the month of June with significant implications for employers on topics ranging from First Amendment rights in the workplace, President Obama’s recess appointments to the National Labor Relations Board (NLRB), public employee union agency fees, and contraceptive coverage requirements under the Affordable Care Act (ACA).
On June 19, the Justices voted unanimously (9-0) in Lane v. Franks, that the First Amendment protected statements a public employee made under oath during his testimony in a criminal prosecution concerning fraud in public program he administered. Edward Lane was the director of a program for at-risk youth in Alabama who was subpoenaed to testify when the federal government prosecuted a state legislator who Lane discovered was on his program’s payroll but had never done any work for the program. Lane was fired following the successful prosecution of the legislator. He then brought suit against his employer, claiming among other things that he had been terminated in violation of his free speech rights under the Constitution. The Court ruled that his testimony qualified as protected speech under the First Amendment because Lane was considered to be speaking as a citizen on a “matter of public concern” (here, misuse of public funds) when he testified during the criminal prosecution, and his public employer, on balance, did not have an adequate countervailing interest in policing that speech.
A week later, on June 26, the High Court addressed the President’s power under the Constitution to make certain “recess appointments” (appointments to government positions made without Congress’s approval during breaks in congressional sessions). The decision in National Labor Relations Board v. Noel Canning, explained that certain recess appointments are constitutional, but that others, like the ones at issue in the case—three commissioners who were appointed to the NLRB—are not. The decision has significant long term implications for constitutional law that are better left to law review articles and textbooks. The immediate impact of the decision and its importance for employers is that because the NLRB recess appointments were not valid, decisions rendered by the three invalidly appointed commissioners are also invalid.
The Court issued two more decisions on the last day of the month that also addressed important issues for employers. The decision in Harris v. Quinn, held that the First Amendment limits the power of a State to compel public employee union agency fees to be paid by all bargaining unit members, particularly those members who do not wish to join the union. At issue was an Illinois state law framework that designated a single public employees union as the exclusive union representative for a group of “personal assistants,” individuals employed by the state to provide in home care to recipients of Medicaid benefits in that state. The Court held that personal assistants who did not want to join the union could not be compelled to pay an agency fee to the union, although the opinion did not outright forbid the practice of agency fee payments by non-members. The decision turned in large part on the unique circumstances presented in the case by the Illinois laws, but the general pronouncements of law concerning non-member payment of union agency fees may have implications for the future.
The second opinion issued that day was the Court’s much anticipated decision on the ACA’s requirement concerning contraceptive coverage. In Burwell v. Hobby Lobby Stores, Inc., two years after having upheld the ACA’s individual mandate as constitutional in a landmark opinion, the Court faced another legal challenge to a provision of the ACA: Could a private company be required to provide health insurance that included access to free contraceptives when the deeply held religious beliefs of the family who owned the company would be contravened in doing so? In a split 5-4 decision, a majority of the Court held that providing contraceptive coverage would substantially burden the exercise of the company’s owners’ religious beliefs, and that the ACA provision requiring companies to provide such coverage could have been implemented through less restrictive means. Therefore, the contraceptive coverage provision of the ACA at issue in the case violated The Religious Freedom Restoration Act of 1993 as applied to the closely held companies that challenged the law. The decision left room, however, for the government to seek alternative avenues to ensure that employees could obtain access to such coverage.
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