Monthly Archives: June 2012


By:  Alan M. Levy

In what was probably the most eagerly-awaited Supreme Court decision since Bush v. Gore, a majority of Chief Justice John Roberts and the Court’s four liberals have held that the “individual mandate” in the Patient Protection and Affordable Care Act (often called “Obamacare”) is constitutional under Congress’s taxing authority.  National Federation of Independent Business, et al. v. Sebelius, et al., 567 U.S. ____, Case No. 11-393 (6/28/12). The law’s supporters have consistently argued that the mandate is necessary so that healthy people share in the costs of the risk pool, and people do not delay their enrollment until already sick because the law prohibits exclusion of preexisting conditions.

In reaching this result, Chief Justice Roberts said that the Anti-Injunction Act (which prevents restraint of a tax law until the tax is collected) does not apply because Congress labeled the mandate as a “penalty,” not a “tax”.  The Commerce Clause was also held inapplicable because this law compels individuals to become active in commerce by purchasing a product rather than regulates how commerce is conducted.

Because the Court is required, if at all possible, to interpret every Congressional action in a way that makes it constitutional, the Chief Justice then went on to rule that the mandate “may be reasonably characterized as a tax,” noting that it is “not so high that there is really no choice but to buy health insurance,” is collected by IRS, and is not a punishment, but an alternative.  This “tax on going without health insurance” was found permissible.

Finally, the Chief Justice and two of the liberals joined the dissenters in ruling that the expansion of Medicaid by each state is unconstitutional insofar as it takes away federal support for other parts of the state’s Medicaid program if the state declines such expansion.  That is, a state cannot be threatened with loss of support for part of its current Medicaid program because it declined to expand that program to include all adults with income of less than 133% of the federal poverty level.

The transition from “penalty” to “tax” in two different contexts will probably raise questions and incite criticism from the opponents of the law.  Further, this finding of constitutionality does not prevent a future Congressional action to modify or eliminate the statute.  However, some popular aspects of the law are already in place, (e.g., dependent care until age 26, elimination of caps on lifetime maximum benefits, phase out of pre-existing conditions) while the mandate itself is not due to take effect until 2014.  Further debate and possible amendment are inevitable.

Lindner & Marsack will continue to monitor the evolution of this statute and other decisions, and will report developments to you as they occur.  If you have any questions, please contact Alan Levy.


By:  Daniel Finerty and John Murray

Conventional wisdom dictates that an election year typically leads to a rulemaking slowdown among the federal agencies that regulate the workplace.  However, in the last few months, the National Labor Relations Board has challenged that conventional wisdom by seeking to implement two new mandates on employers as well and continuing to press employers on their use of social media policies in the workplace.  The new rules, however, have effectively been halted for the time being as discussed below.  By contrast to the current pace of the Board’s rules, it continues to challenge employers’ use of social media policies in discipline and discharge cases to ensure that unions and employees can continue to use social media to communicate.  In sum, there is no sign that things are slowing down at the Board in this election year.

“Fast Track” Election Rules

For two weeks in May, the National Labor Relations Board’s “fast track” election rules were in effect.  These rules dramatically reduced the time frame between a union’s filing of a petition for an election and the election itself.  Apparently, roughly 150 election petitions were filed during the two weeks these rules were in effect.

On May 15, 2012, the federal district court for the District of Columbia issued an order which invalidated these fast track election rules.  The court held that the rules were not validly enacted because the Board only had two members vote before the rules were enacted. “[T]wo is simply not enough,” the court held.

For the time being, employers have a reprieve from these rules.  However, the Board has several avenues open to it to revive them.  First, the Board could appeal the court’s ruling.  The chances of a successful appeal appear bleak.  The Supreme Court ruled in 2010 that the Board could not function as a body without the necessary quorum of three members.  Since all three members did not vote on the fast track election rules, the chances the Board would succeed on such an appeal are grim.

On June 11, 2012, the NLRB asked the judge who invalidated the fast track election rules to reconsider his decision.  In its motion, the Board argues that the judge had a mistaken understanding of the facts.

The Board provided evidence showing that the third Board member was “present,” logged on to the voting system, acted on matters before and after the fast track rules came up and deliberately abstained from voting.  If so, the judge could find a valid quorum existed when the rules were passed, reverse course and permit the fast track election rules to (again) go into effect.

Employee Rights Notice Posting

The Board’s recent rules have not fared well in court.  It has received unfavorable decisions in three separate cases pending in two separate federal courts relating to its employee rights posting rule.  The posting required by this rule was similar to postings required by Title VII and other federal and state laws.  The rule applied to most private sector employers, even ones that did not have a union.  The district court for the District of Columbia ruled that the penalty provisions of the rule were invalid.  Soon thereafter, a federal district court in South Carolina ruled that the entire rule was invalid.  On the heels of these two decisions, the federal appeals court for the District of Columbia issued a temporary halt to the enforcement of the rule in order to allow time to consider the objections to its validity.

The Board could re-submit the “fast track” election rules and a revised version of its employee notice posting rule to its current quorum of four members.  While the Board is typically made up of five members, Member Flynn has resigned his position and recused himself from voting on any agency business.

Social Media

Regardless of whether the Board tries to implement these rules, it is continuing to press employers on social media policies.  On May 30, 2012, the Board issued its third guidance memorandum regarding its analysis of employer social media policies.  Prior memos were issued in January 2012 and August 2011 memos.

Together, all three memos discuss the Board’s legal analysis in 35 cases involving employer’s use of social media policies.  Of the seven cases discussed in the most recent memo, the Board found the employer’s policy in violation of the National Labor Relations Act in six cases.  In the seventh case, the Board found the employer’s social media policy valid only as modified.

The Board may find that an employer’s social media policy violates Section 8(a)(1) of the NLRA when it reasonably tends to interfere with employees’ rights to discuss their wages and other terms and conditions of employment.  Online employee discussions may constitute protected activity under the NLRA.  As a result, policies that explicitly restrict employee discussions of wages and other terms and conditions of work are generally prohibited.

Policies that do not explicitly restrain protected activities may still be prohibited if employees would reasonably construe the policy to do so, the rule was promulgated in response to union activity or the rule has been applied to employees engaging in protected activity.

However, the Board recently made clear that the NLRA does not protect regular employee “gripes” about the workplace.  For example, a single employee’s lone complaint posted online about a fellow employee and their work product did not constitute protected activity.

First, the fellow employee’s poor work product did not adversely impact the working conditions.  Second, the concerns expressed only had a tangential relationship to the employee’s terms and conditions of work.  As a result, the employee’s “gripes” about the fellow employee were not protected and no violation of the NLRA was found.


The Board continues to press its agenda on several fronts to ensure that unions and their supporters grow or, at the very least, maintain, a foothold in the American workplace.  That said, the November presidential election will likely be a key defining moment for the Board’s regulatory agenda between 2013 and 2016.

Either the Board’s regulatory activity will continue and possibly intensify.  If so, the Board may re-issue the foregoing rules and issue final rules that regulate employers’ relationships with their human resources and labor relations attorneys and partners.

Or the Board’s regulatory agency will slow dramatically and may grind to a halt.  In this case, the Board would continue to regulate employers through the traditional avenues involving its charge procedures and election certification petitions.

If you have any questions about this material, please contact Daniel Finerty, John Murray or any other attorney you have been working with here at Lindner & Marsack, S.C. at (414) 273-3910.