RECENT DEVELOPMENTS IN EMPLOYMENT LAW AND LITIGATION

• Published in: Tort trial & insurance practice law journal Vol. 50; no. 2; pp. 323 - 348
• Main Authors: Lotito, Michael J., Gelbman, Tessa J., Anderson, Tyler J., Berry, Shari L., Gunning, Daniel C., Foderaro, Nicholas J.
• Format: Journal Article
• Language: English
• Published: Chicago Tort Trial & Insurance Practice Section, American Bar Association 01.01.2015; American Bar Association
• Subjects: Birth control; Federal court decisions; Labor law; Litigation; Wagner Act 1935-US
• ISSN: 1543-3234; 1943-118X

[...]the Board must revisit and redecide hundreds of decisions it issued between January 4, 2012, and August 5, 2013, when the Board's quorum was restored.4 Although many of these decisions5 will be summarily approved,6 approximately 100 cases-many of which raised significant issues'-were appealed to the federal courts and must be reevaluated by the Board. On April 30, 2014, the Board revealed its plan to overturn its thirty-year-old joint-employer precedent by inviting amicus briefs to help decide whether to adopt a new joint employer standard in Browning-Ferris Industries of California, Inc.17 Meanwhile, on July 29, 2014, NLRB General Counsel Richard Griffin, Jr., who had been one of the controversial recess appointees, announced that he authorized complaints against numerous McDonald's franchisees and McDonald's, USA (the franchisor) as joint employers for alleged unfair labor practices.\n139 Instead, the majority reasoned that the RFRA was designed to afford broad protections with regard to religious liberty.140 On the basis of its finding that entities receive RFRA protection, the majority stated that simply because the owners of a company did not organize their business as a sole proprietorship or a general partnership does not mean that they waive the entity's RFRA protection.141 Because, the majority reasoned, corporations are made up of people, the RFRA protections should be extended to corporations to protect these people's beliefs.142 Because the RFRA applied to Hobby Lobby, the ACA was deemed a substantial burden on the entity's ability to practice its religious views;143 therefore, the majority assessed whether the ACA mandate was the least restrictive means of providing employees access to contraception.144 In balancing the substantial government interest of providing employees with access to contraception with the extent of the substantial burden on Hobby Lobby's religious values, the majority emphasized that the penalties for not providing such contraceptives under the company health plan would be $100 per day for each affected individual, which for Hobby Lobby meant a nine-figure penalty.14:' Or, in the alternative, Hobby Lobby could have dropped insurance coverage for all employees, yielding a hefty $26 million penalty.146 Although, as HHS argued, the cost of these potential penalties would not actually outweigh the cost of providing insurance coverage if the employer opted out of the mandate, the majority assessed the religious views of Hobby Lobby and the potential penalties of the mandate in a vacuum, without considering the alternative options for the employer.147 In finding that less restrictive means existed to provide employees with access to contraception, the majority essentially evaluated the viability of the ACA: