Administrative law

  • February 10, 2012

    by Nicole Flatow

    Following sharp attacks from religious and conservative groups of the health care rule that would require insurance plans to cover contraceptives, the White House has announced a minor alteration to the rule that maintains free access to birth control.

    The change would shift the onus of providing the contraceptive services from the employer to the insurance provider. If a religiously affiliated employer objects to providing that coverage in its benefits package, the insurance company will be required to reach out directly to the beneficiary to offer full contraceptives coverage.

    “No woman’s health should depend on who she is or where she works or how much money she makes,” Obama said in announcing the change today. He added:

    I understand some in Washington want to treat this as another political wedge issue. But it shouldn’t be. I certainly never saw it that way. … We live in a pluralistic society where we’re not gonna agree on every single issue or share every belief. That doesn’t mean we have to choose between individual liberty and basic fairness.

    Today's shift, described by one official as an “accommodation” rather than a “compromise,” was quickly endorsed by the Catholic Health Association, one of the original critics of the rule, as well as Planned Parenthood and NARAL Pro-Choice America.

    But the announcement is not likely to satisfy some of the most committed critics. Just last night during a webcast, the Family Research Council blasted the contraception rule as “not only an attack on the consciences of employers and employees, but a direct attack on religious freedom.”

    Throughout the week, constitutional experts have reiterated that the contraception rule did not violate the Constitution’s religious liberty clauses.   

     "There isn't a constitutional issue involved," prominent litigator David Boies told MSNBC’s Lawrence O’Donnell. “There isn’t anything in the Constitution that says an employer, regardless of whether you are a church employer or not, isn’t subject to the same rules as every other employer.”

    “One thing I think is crystal clear — there is no First Amendment violation by this law,” Adam Winkler, a constitutional law professor at UCLA, told TPM. “The Supreme Court was very clear in a case called Employment Division v. Smith, written by none other than Antonin Scalia, that religious believers and institutions are not entitled to an exemption from generally applicable laws.”

    Atlanta Journal-Constitution columnist Jay Bookman highlights some excerpts from the Smith decision in which Scalia, “himself a devout and very conservative Catholic,” makes the case for Obama. Scalia wrote:

  • January 17, 2012
    Guest Post

    By Ann C. Hodges, a professor of law at the University of Richmond

    In the past 20 years the Supreme Court has interpreted the Federal Arbitration Act broadly, allowing businesses to require consumers and employees to arbitrate, rather than litigate, many legal claims. Businesses frequently use arbitration agreements to bar class actions, which can be costly and time-consuming. Just last term, in AT&T v. Concepcion, the Court enhanced this business tool, striking down a California law that prevented businesses from barring class actions in cases involving small claims brought by less powerful parties bound to arbitrate by contracts of adhesion. Although the case involved consumers, it offered employers a vehicle to restrict employee class actions.

    The NLRB’s decision in D.R. Horton, issued in early January, significantly limited the effectiveness of this tool for employers by invalidating an arbitration agreement that banned class actions. This case is likely to generate significant controversy, provoking even more attacks on the agency by its vocal critics, but experienced labor lawyers will recognize the case as an unremarkable application of long-settled legal principles.

    Class claims frequently offer the only vehicle for consumers or employees to challenge unlawful actions that cause limited damages to each individual while often reaping millions for the business. For each person injured, the cost of litigating a claim outweighs the potential benefit.  Without class actions, these claims often go unremedied. In the workplace, Fair Labor Standards Act cases seeking minimum wage or overtime payments are most likely to be abandoned on this basis and Horton involved such a claim, alleging that the nonunion employer misclassified employees as exempt from overtime pay.

  • January 13, 2012

    by Nicole Flatow

    The Justice Department’s Office of Legal Counsel released a memo yesterday explaining the legal justification for President Obama’s recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau and three others to the National Labor Relations Board.

    "This is one opinion that is likely to be followed by future presidents,” UNC law professor Michael Gerhardt told Mother Jones. “It's not easy to overturn opinions of the [Office of Legal Counsel], as the history of the [Bush-era] Torture Memos demonstrate."

    The memo concludes that Obama was authorized to act under the Constitution’s Recess Appointments Clause, and that the Senate’s attempt to block appointments by holding “pro forma” sessions every few days did nothing to disrupt its recess.

    "[W]hile Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess," Assistant Attorney General Virginia Seitz writes in the memo.

    Ohio State University’s Peter Shane calls the memo’s argument that Obama made the appointments during what was effectively a 20-day recess the more “institutionally modest” approach. He and others have argued that even during a three-day recess, Obama could have made such appointments.

    Bolstering these arguments is the fact that Obama only made appointments to those agencies that were unable to perform essential functions so long as the vacancies remained open.

  • December 27, 2011
    Video Interview

    by Jonathan Arogeti

    A new rule adopted by the National Labor Relations Board (NLRB) will simplify elections to form unions and delay the appeals process until after those elections. The board said the changes are slated to take effect on April 30, 2012, The Blog of Legal Times reports.

    “This rule is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation,” said NLRB Chairman Mark Gaston Pearce.

    These changes are part of a more comprehensive rules reform proposal put forth by the board in July. In a release announcing the changes, the NLRB said it would hold for further review the most debate-generating proposals, but that they would push forward with these “less controversial” ones.

    AFL-CIO President Richard Trumka (pictured) hailed the move, saying, “It's good news that the NLRB has taken this modest but important step to help ensure that workers who want to vote to form a union at their workplace get a fair opportunity to do so.” He warned, though, “Many more improvements are needed to protect workers' rights. We hope the Board will quickly move to adopt the rest of its proposed reforms to modernize and streamline the election process.”

    The U.S. Chamber of Commerce immediately moved to counter the rule change, filing a lawsuit in the U.S. District Court for the District of Columbia.

    Meanwhile, similar future decisions by the NLRB are in jeopardy, as the Board is slated to lose its necessary quorum at the end of the month. Currently, only three of the five seats are filled; that number will go down to two when Craig Becker’s recess appointment expires Dec. 31. The Supreme Court held last year in New Process Steel v. NLRB that the NLRB could not legally operate with less than three members, and voided more than 400 NLRB rulings made by only two members. 

     Victor Williams, a professor at the Catholic University of America Columbus School of Law, writes in Jurist that the Republican obstruction of two pending confirmations to the board amounts to “nullification” and urges president Obama to use his power make recess appointments. Williams argues that senators’ attempt to block recess appointments by holding sessions every three days during the holiday break is without legal authority.

    He writes:

  • October 18, 2011
    Guest Post

    By Reuben Guttman and Oderah Nwaeze. Reuben Guttman is a Director at the firm of Grant & Eisenhofer and heads the firm's False Claims Act litigation group. He is a Senior Fellow and Adjunct Professor at the Emory Law School Center of Advocacy and Dispute Resolution. Oderah Nwaeze is member of the Grant & Eisenhofer False Claims Act Litigation Group, and a 2011 graduate of Emory Law School.

    Buried in President Obama’s healthcare reform law, the Patient Protection and Affordable Care Act (PPACA), is a measure called the Physician Payments Sunshine Provision or the “Disclosure Law.” This law requires the public disclosure of payments made to doctors by pharmaceutical and medical device manufacturers.  Since even small gifts can compromise a doctor’s objectivity, a patient should know whether his physician has received money and/or gifts from drug or device companies.  Recent civil prosecutions of the pharmaceutical and medical device industries under the False Claims Act (FCA), resulting in pharmaceutical giants paying millions of dollars to resolve allegations that they paid kickbacks in order to induce the writing of prescriptions, demonstrates that the transparency required by this law is long overdue.

    The FCA allows private citizens with knowledge of a fraud on the government to bring suit in the name of the government. Whistleblower cases brought under the FCA against some of the world's largest pharmaceutical companies have surfaced allegations and information raising real concerns that illegal marketing schemes including off label marketing -- or marketing a drug for purposes outside its indication -- and kickbacks in form of payments made to doctors under the guise of research studies -- have caused billions of dollars of prescriptions to be written for drugs that are not needed or that may actually cause injury or illness with additional costs for treatment further burdening our nation's health care system. Within the last five years alone, Pfizer, AstraZeneca, Boston Scientific, Eli Lilly, and Biovail paid a combined total of $4.3 billion to settle claims of unlawful marketing.  Although Pfizer's share was a record $2.3 billion, the company posted revenues of more than $171 billion for the drugs that were illegally marketed. To a large degree, these settlements -- even with the huge monetary sanctions -- only serve to highlight problems rather than fully address them.