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Third Circuit Invalidates NLRB Recess Appointments; EEOC Pursues Genetic Discrimination Case

First up, the Third Circuit has become the second federal
appeals court (following the D.C. Circuit) to rule that President Obama’s
recess appointments to the NLRB were invalid
, and that therefore some Board
actions taken in the wake of those appointments were also invalid for lack of a
valid quorum. 

The Recess Appointments Clause permits the President to
make appointments, without Senate approval, at certain times when the Senate is
not in session
.  The court found that the
presidential recess appointment power is limited to breaks between sessions of
Congress, rather than breaks within sessions- a ruling that mirrors that of the
D.C. Circuit.  Specifically, the court
found that the recess appointment power applies only to an intersession recess
between the first and second sessions of a biennial Congress, rather than to
intrasession breaks.  The Third Circuit
chose, however, to focus on a 2010 appointment, rather than more recent 2012
appointments that occurred during the Senate’s initial recess in January 2012,
with the difference being that the Third Circuit’s decision could potentially
invalidate NLRB decisions going all the way back to 2010.  In the case, some decisions taken by the NLRB
were challenged as invalid because the board did not have enough active members
to legally rule on disputes.  Because one
member of the three member panel was appointed during a break of a session of
Congress and was thus not a valid member, the NLRB lacked authority to make
orders.  The majority held that a more
narrow reading of the recess clause would better preserve the Senate’s “advice
and consent” power. 

The Obama administration has filed for cert with the
Supreme Court, arguing that the earlier D.C. Circuit opinion would curtail
traditional use of the recess appointment clause, and that the decision could
be used to block the policies of many other federal agencies (including the controversial
CFPB) whose members were appointed using the recess clause. 

Next, the EEOC recently settled its first suit under the
Genetic Information Nondiscrimination Act,
which makes it illegal for employers
to discriminate against employees based on genetic information, including
family medical history.  In the case, the
EEOC alleged an employer refused to hire a woman who had been offered a
position as a memo clerk because tests it had conducted indicated she had
carpal tunnel syndrome.  Although her own
doctor did not indicate she did not have CTS, the company’s outside lab had
determined she needed to be subjected to further testing following a routine
drug tests and medical history questionnaire. 
The EEOC noted that the GINA prevents a company for requiring family
medical history information, and that it is going to be taking a more
aggressive stance in preventing such practices.