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SHRM recently filed amicus briefs in two important cases pending before the Supreme Court: National Labor Relations Board v. Noel Canning and Integrity Staffing Solutions v. Busk.

Noel Canning

The Noel Canning case arose out of President Obama’s use of the “recess appointments clause,” part of Article II of the U.S. Constitution, to appoint three members to the National Labor Relations Board back in early 2012 without the advice and consent of the Senate. Recess appointees can serve only until the end of the next session of the Senate, unless the body confirms the appointment in the meantime. When the board subsequently ruled against Noel Canning in an unfair labor practice case, the soft-drink bottling company challenged the decision, arguing in part that the appointments were unconstitutional.

The Supreme Court has agreed to decide three questions in the case, each hinging on the interplay between the president’s constitutional powers of recess appointment and Congress’ rules and procedures: (1) whether the president can make “recess appointments” only when the Senate is in recess between sessions of Congress and not when the recess occurs within a session; (2) whether the president can only fill vacancies that open up during a recess; and (3) whether the Senate can be considered to be in recess when it is convening in periodic “pro forma” sessions.

The Supreme Court will hear arguments on the case on Jan. 13, 2014, and its final decision not only will determine whether the ruling against Noel Canning stands but also will define the parameters of how presidential appointment powers may be used in the future. SHRM’s amicus brief was submitted jointly with other associations.


In its amicus brief in Integrity Staffing Solutions v. Busk filed in November, SHRM urged the Supreme Court to review a 9th Circuit decision on whether employees are entitled to mandatory compensation for time spent in security screenings under the Fair Labor Standards Act and the Portal-to-Portal Act.

In this case, respondents filed a collective action alleging that they and hundreds of other former and current employees are entitled to compensation for time spent undergoing security screening after the conclusion of their work shifts. SHRM’s brief argued that the 9th Circuit’s decision, which held that employees are entitled to compensation, conflicts with decisions from the 2nd and the 11th circuits and runs counter to long-standing regulatory interpretation. In addition, the 9th Circuit decision creates enormous potential unanticipated financial liability for thousands of employers throughout the country that use security screenings.

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