SimplyHR | Employment & Labor Blog 

“We're all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box.” – Jerry Seinfeld

Employers often find it difficult to set and manage their expectations for employees. Like playing a board game, however, managing employees is markedly easier and purposeful when the rules are clear, widely read and consistently followed. Workplaces, like board games, operate smoother and more efficiently when everyone is aware of and familiar with the rules. And, like board games, people are best served to read the rules before beginning.

Intra-Session NLRB Recess Appointments Invalid: The United States Court of Appeals for the Third Circuit recently became the second federal appellate court to find one of President Obama's intra-session recess appointments to the National Labor Relations Board unconstitutional, thus raising further question of the Board's current authority. The Third Circuit held that the appointment of Craig Becker to the NLRB failed to satisfy constitutional requirements, thus invalidating a bargaining order issued by a Board panel of which Mr. Becker was a member. The Third Circuit's decision followed a D.C. Circuit decision earlier this year in which the D.C. court ruled that President Obama's three most-recent intra-session recess appointments were unconstitutional.

Late last year the Seventh Circuit reversed prior precedent and held that an associate who is minimally qualified must be reassigned to a vacant position as a reasonable accommodation in EEOC v. United Airlines, Inc.. 2012 U.S. App. LEXIS 18804 (7th Cir. 2012). That decision, coupled with the EEOC's focus on fixed-leave policies as violating the Americans with Disabilities Act (“ADA”), has caused much angst among employers as they struggle to square lean staffing models with the ADA’s duty to accommodate.