Flurry of Supreme Court Decisions Addresses Labor and Employment Issues

In Epilepsy Foundation of Northeast Ohio vs. NLRB, the Supreme Court let stand a District of Columbia Circuit Court decision extending “Weingarten” rights (i.e., the right to have a co-worker present in  any investigatory meeting that reasonably may result in disciplinary action) to non-union employees. In doing so, the Court did not endorse the decision outright. Rather, it held that the NLRB, which has gone back and forth on this issue over the years, made a reasonable interpretation of the law and that interpretation was entitled to deference. The effect for employers is the possible continuation of the NLRB’s see-saw approach to non-union employee representation rights. The issue may be moot, however, since the lower court also held that the NLRB’s decision could not be enforced  retroactively and, therefore, the employer did not have to reinstate the employee or provide backpay as a result of its “violation.”