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NLRB Recess Appointments

News from the National Association of Wholesaler-Distributors (NAW)

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From: Jade West, Senior Vice President-Government Relations

NLRB Recess Appointments:

As you all know, the D.C. Circuit Court of Appeals ruled in January in the Noel Canning case that President Obama's 2012 "recess" appointments of three members to the National Labor Relations Board were unconstitutional and invalid because the Senate was not in recess when he made the appointments.  NAW was involved in the challenge to the appointments, and will be involved in the appeal going forward.  (To read NAW's detailed report and Legal Advisory on the Circuit Court decision, please go to:

The Board's options following the decision included requesting an en banc review of the decision by the full D.C. Circuit Court, filing a petition for certiorari asking the Supreme Court to hear the case, or waiting to see if a case in another circuit might provide a different ruling that they could then take up on appeal.  It has been two months since the Noel Canning decision, and there has been increasing concern in the business community that the Board would opt for the latter option, postponing an appeal and leaving the matter unsettled for many months to come.

Fortunately, the Board announced yesterday that it would forego a review by the full D.C. Circuit, and would instead appeal the Noel Canning case to the Supreme Court.  Their appeal to the high court must be filed by April 25th, and we'll keep you posted as the case proceeds, and of course share with you any filings in which NAW participates in the appeals process.

Department of Labor Wage and Hour Division (WHD) moving forward with Fair Labor Standards Act (FLSA) action:

In 2011, WHD announced a planned rulemaking, which they called "Right to Know," dealing with enforcement of the FLSA.  Specifically, the Right to Know effort would include additional record-keeping rules requiring employers to demonstrate – and share with workers – the employers’ compliance with FLSA wage regulations.  Employers would be required to notify workers of their rights under FLSA, share information on how their wages are computed, and ensure workers “are better positioned to meaningfully participate in workplace decision-making.”

WHD did not pursue the Right to Know rulemaking in 2012, and at the end of last year listed it as a long-term project at the division.  However, in January, they announced they would be seeking public comment on a proposal to collect information “about employment experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification.” 

The business community anticipated that this proposed information collection initiative may be setting the stage for the Right to Know rulemaking, and it appears, unfortunately, that those concerns were well-founded.

WHD is now proposing to begin the Right to Know initiative with a survey of workers to determine if they are being correctly classified as employees or independent contractors.  The division made it very difficult to get a copy of their proposed survey, finally produced a copy of a poorly-constructed and clearly biased survey, and provided inadequate time for stakeholders to provide comments on the process or the survey itself. 

NAW and a number of other associations have sent letters to WHD asking that the comment period be extended, beginning on the date on which they make the survey document readily available on-line.  We have also filed comments with the division objecting to the survey, the methodology, and the entire process by which the survey has been produced and advanced.

To read our letter explaining why the comment period was inappropriate and should be extended, please go to:

To read our full comments on the survey, please go to: