Gorsuch’s Judicial Approach and Workplace Protection

When Judge Neil Gorsuch accepted his nomination to the Supreme Court, he professed modesty about his role on the Court, if he is confirmed.  He proclaimed that it is the role of judges to “apply not alter the work of the people’s representatives.”  But, unfortunately, Judge Gorsuch’s record casts serious doubt on whether he would truly respect the role of Congress when it comes to drafting legislation that protects the well-being of the American people.  A recent case involving a truck driver who was fired for leaving his load to take refuge after waiting two and a half hours without heat on a sub-freezing night illustrates how Judge Gorsuch’s approach to the law would endanger workers and the public.

For 150 years, Congress has drafted remedial legislation with the understanding that the courts would liberally construe the provisions of the laws to accomplish their ends.  Here’s what Representative Samuel Shellabarger, the author and manager of the 1871 Civil Rights Act said regarding that Act: “This act is remedial, and in aid of the preservation of human liberty and human rights.  All statutes and constitutional provisions authorizing such statutes are liberally and beneficially construed.  It would be most strange, and in civilized law, monstrous were this not the rule of interpretation.  As has been again and again decided by your own Supreme Court of the United States … the largest latitude consistent with the words employed is uniformly given in construing such statutes….”

Nor was that just the wishful thinking of a legislator.  Even in 1930, during the height of what we refer to as the Lochner era, a unanimous Supreme Court acknowledged that the Federal Employers’ Liability Act (FELA), a law designed to protect injured workers, was “to be construed liberally to fulfill the purposes for which it was enacted.”  Thus, the Court held that even though the statute only imposed liability on railroads for injuries that resulted from the “negligence” of the railroad’s agents or employees, it was proper to impose liability where a foreman assaulted a worker.  The Court explained that since the employer would clearly be liable if the worker’s injuries “had been caused by mere inadvertence or carelessness on the part of the offending foreman it would be unreasonable and in conflict with the purpose of Congress to hold that the assault, a much graver breach of duty, was not negligence within the meaning of the Act.”

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Today’s News & Commentary — February 1, 2017

Last night, the President nominated 10th Circuit Judge Neil Gorsuch to the United States Supreme Court. As Hannah reported yesterday, Judge Gorsuch shares a similar legal philosophy to that of the late Justice Scalia and is known for advocating for an end the doctrine of Chevron deference to administrative agencies. Gorsuch’s labor record is sparse, as he has only written four NLRB opinions. In those opinions (three majority; one dissent), Gorsuch deferred to the NLRB three out of four times, with the result of only one union-friendly outcome. He also wrote for the majority in 14 published opinions on employment discrimination, of which 9 were favorable to the employer, 3 were favorable to the employee, and 2 were mixed results (partially affirming and partially reversing the district court, resulting in favorable and unfavorable effects for the employer and employee). The New York Times Editorial Board reports that Gorsuch “spells big trouble for public sector labor unions.”

The Washington Post announced yesterday that it had obtained a draft executive order that, if enacted, would substantially overhaul the current system for administering immigrant and nonimmigrant visas. The draft order is entitled “Executive Order on Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs” and states that its goal is to protect American workers—”our forgotten working people.” The draft order directs the Secretary of Homeland Security to review all regulations that permit immigrants to work in the U.S. and to collaborate with the Secretaries of State and Labor to “restore the integrity of employment-based nonimmigrant worker programs.” The Post reports that, if enacted, the order would “immediately restrict[ ] the flow of immigrants and temporary laborers into the U.S. workforce.” The draft order is partially premised on the unsubstantiated idea that immigrants are more likely to rely on public benefits than those born in the U.S. In fact, studies from Harvard and the Cato Institute show that the opposite is true.

The hearing for Labor Secretary nominee Andrew Puzder has been postponed for the fourth time since he was nominated on December 8. The hearing was most recently scheduled to take place on February 7, 2017, and no new date has been confirmed yet. An aide for the Senate Committee on Health, Education, Labor and Pensions told the press that the Committee is still waiting to receive Mr. Puzder’s paperwork from the Office of Government Ethics. Experts have called the repeated delays “unusual” and suggested that the delays indicate problems for the nominee in the vetting process.

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The Supreme Court Vacancy and Labor: Neil Gorsuch

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

Neil Gorsuch currently serves as a judge on the United States Court of Appeals for the 10th Circuit. He was appointed by President George W. Bush on May 10, 2006 and confirmed just over two months later. As SCOTUSblog and numerous other outlets have pointed out, Judge Gorsuch may be “the most natural successor” to Justice Scalia, “both in terms of his judicial style and his substantive approach.”

Last August, Judge Gorsuch “made real waves in the normally sleepy world of administrative law” by advocating the end of the doctrine of Chevron deference. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1158 (10th Cir. 2016) (Gorsuch, J., concurring). Writing a separate concurrence to his own opinion, Judge Gorsuch opined, “We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change – except perhaps the most important things.” Id.

The following provides an overview of Judge Gorsuch’s opinions in cases involving the NLRB and employment discrimination.

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The Supreme Court Vacancy and Labor: William Pryor

President Donald Trump plans to announce his nominee to fill the late Justice Scalia’s seat on the Supreme Court this Thursday.  Among the rumored candidates is Judge William H. Pryor Jr. of the 11th Circuit, who met with the president two weeks ago.  Judge Pryor was appointed by President George W. Bush to his seat in Alabama in 2005 after the Senate voted to confirm him 53–45.  From 1995–97, Judge Pryor served as a deputy attorney general of Alabama.  He was elected as Alabama’s Attorney General in 1997, at 34 years old, and served in that position until his nomination to the 11th Circuit.  SCOTUS Blog has extensively covered Judge Pryor’s record on a variety of legal topics, but did not discuss the judge’s record on labor and employment.  We do so here.

Judge Pryor has not developed a particular reputation with respect to labor and employment law, but one impression that emerges from a look at the admittedly few labor and employment opinions he has written or joined is deference to the determinations of the NLRB.

Unlike his fellow shortlist member Neil Gorsuch, Judge Pryor has not publicly expressed concern over excessive deference to administrative agencies.  His NLRB opinions reflect a preference for deferring to agency interpretations and findings.  Out of nine cases he heard in which the NLRB was a party, Judge Pryor sided with the NLRB in eight of them.  In seven of these cases, Judge Pryor found that “substantial evidence” supported the NLRB’s determinations.  Judge Pryor was part of the unanimous or per curiam opinion in six of these cases.  In Lakeland Health Care Assocs. v. NLRB, Judge Pryor dissented from the majority opinion holding that substantial evidence did not support the NLRB’s decision to not count defendant employer’s licensed practical nurses as supervisors, thereby precluding their attempts to unionize.  Criticizing the majority, Judge Pryor wrote, “[i]n reweighing the facts and setting aside the Board’s order, the majority opinion ‘improper substitute[s] its own views of the facts for those of the Board,’ […] and fails to adhere to our deferential standard of review.”  696 F.3d 1332, 1350 (11th Cir. 2012).  He recognized that though some circuits gave a less deferential standard of review to NLRB determinations of who counts as a “supervisor” under § 2(11) of the NLRA, “our Court has refused to make ‘judicial adjustments to the statutory standard of review because we believe the wiser course is a robust application of the standard that has typified review of Board decisions.’”  Id. (citations omitted). Continue reading

Looking Back at Justice Scalia’s Decision in Oncale: “because of… sex”

After the passing of Justice Antonin Scalia earlier this year, many rushed to evaluate his legacy (for good or for bad).  While Justice Scalia’s missing vote in Freidrichs v. California Teachers Association drew a great deal of immediate attention, few discussed the lasting impact of his decisions on employment law.  In this realm, one of the most frequent criticisms of Justice Scalia’s jurisprudence was that his decisions tended to restrict plaintiffs’ rights (such as Wal-Mart v. Dukes).  However, in Oncale v. Sundowner Offshore Services, Inc., Justice Scalia actually extended Title VII protections to cover same-sex sexual harassment claims.

When the Oncale decision was announced in 1998, it was widely praised for sending a message that ”male or female, gay or straight, nobody should have to face sexual harassment when they go to work in the morning.”  In reality, the decision only had a limited immediate impact, and became more notable for what it did not do.  Since Oncale, lower courts repeatedly interpreted the decision as a bar to Title VII claims on the basis of sexual orientation.  Now, years later, many, including the EEOC, believe Oncale actually opened the door to further expansions of Title VII protections.

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The Supreme Court Vacancy and Labor: Paul Watford

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

Paul Watford has been a judge on the 9th Circuit since his nomination by President Obama in 2012.  He was confirmed by the Senate by a vote of sixty-one to thirty-four, with nine Republicans voting in favor of his nomination.  48 years old and African American, Judge Watford clerked for Judge Kozinski, a Ronald Reagan-appointee, and for Justice Ginsburg.  While serving as an Assistant United States Attorney, Judge Watford worked in the Criminal Division and in Major Frauds before heading to Munger, Tolles & Olson.  Watford notably co-authored an amicus brief on behalf of doctors, clinical ethicists, and other medical professionals in support of death row inmates challenging Kentucky’s lethal injection practices.  Additionally, he assisted with a brief for minority business owners as amici in a case about what actions Congress can take to remedy racial discrimination.

Arbitration Agreements

Although Judge Watford doesn’t have an extensive paper trail when it comes to labor and employment decisions, he did author the opinion for one of California’s hot button employment cases in 2014.  In two separate, but concurrent suits — one alleging Bloomingdale’s violated California wage law and another alleging Nordstrom violated federal and state employment laws — the Ninth Circuit, a frequently employee-friendly bench, sided with the retailers and compelled individual arbitration of claims brought by workers as putative class actions.

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The Supreme Court Vacancy and Labor: Sri Srinivasan

This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.

Sri Srinivasan is currently a judge on the U.S. Court of Appeals for the D.C. Circuit.  The Senate approved Srinivasan for the prestigious circuit in a 97-0 vote in 2013.  Of all the potential Supreme Court nominees the media has identified as a candidate to replace Justice Scalia, Srinivasan is probably mentioned most frequently: he can be found on Politico’s, the New York Times’, Washington Post’s, and of course Wikipedia’s short lists.

Yet in comparison to other speculative nominees, the public knows less about Srinivasan’s political views.  Both left and right leaning groups have criticized Srinivasan.  Some progressives have criticized his representation of Enron president Jeffrey Skilling and ExxonMobil from his private sector days.  The National Review criticized the media’s depiction of Srinivasan as a “moderate” candidate for the Supreme Court vacancy, suggesting instead that he is more comparable to Ruth Bader Ginsburg.  Part of this disagreement may stem from Srinivasan’s long career as an attorney and from attributing political views to the judge based on the clients he’s represented.  Now that Srinivasan has been on the court three years, however, we have a bit more to work with.

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