This is the second of two columns discussing U.S. Supreme Court decisions from the 2016-17 term impacting employers. This month we review decisions regarding whether the former acting general counsel of the National Labor Relations Board (NLRB) properly served in that role after his nomination to serve as the NLRB’s general counsel on a permanent basis; whether pension plans maintained by certain church-affiliated employers, but not established by a church, qualify for the church plan exemption under the Employee Retirement Income Security Act (ERISA); and whether qui tam whistleblower suits brought under the False Claims Act (FCA) are subject to mandatory dismissal when the FCA’s requirement to keep such complaints under seal is violated. These cases have far-reaching implications.
Acting Officials
In N.L.R.B. v. SW General, 137 S. Ct. 929 (2017), the Supreme Court ruled 6-2 that the NLRB’s prior acting general counsel, Lafe Solomon, improperly served in that role from January 2011 through October 2013 while awaiting Senate confirmation to serve as the NLRB’s general counsel on a permanent basis. The court concluded, based on the Federal Vacancies Reform Act (FVRA), that any person nominated to serve in an acting office could not also serve as the permanent nominee. However, it left open the possibility that not all of Solomon’s actions as acting general counsel are void.
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