This post is part of OnLabor’s continuing analysis of National Labor Relations Board v. Murphy Oil USA.
As reported by Law360, the Supreme Court has informed the parties in Murphy Oil, Ernst & Young, and Epic Systems that the Court will postpone oral argument until next term, which begins in October 2017. The Court granted certiorari in January. Law360 points out that Judge Neil Gorsuch will likely be confirmed to the Court by this fall, assuming that Senate Democrats do not decline to confirm his nomination. Some followers of the Court believed the justices would be evenly split on the enforceability of class action waivers in employment contracts, and Gorsuch could provide the tie-breaking vote. A separate Law360 piece analyzing Gorsuch’s previous arbitration agreement and class action decisions suggested that “employers may have reason to be optimistic” in Murphy Oil with Gorsuch on the Court.
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.
As reported in the BNA Daily Labor Report, the Supreme Court today granted review in Murphy Oil, Ernst & Young, and Epic Systems, three court of appeals cases that address the question of whether class action waivers in mandatory employment arbitration agreements are unlawful under the National Labor Relations Act. We’ve covered this question in some depth, and will continue to do so now that the issue will be before the Court.
Moshe Z. Marvit is an attorney and fellow with The Century Foundation, focusing on labor and employment law and policy. He is the co-author (with Rick Kahlenberg) of the book, “Why Labor Organizing Should be a Civil Right.”
This post is part of a series on Labor in the Trump Years.
With the election of President-elect Donald Trump, labor faces a unique opportunity. Yes, it will face hostility in all branches of the federal government, and will have to maintain a multi-pronged fight. Yes, union density numbers are at historically low levels, and the bulwark of public-sector unionism may suffer a major blow at the Supreme Court through a case challenging the constitutionality of fair-share fees in the public sector. Yes, it will face unprecedented challenges to expand, let alone stay afloat. But in the midst of all this, labor has the opportunity to reform itself so that it can not only survive a Trump administration, but grow as well. Perhaps “opportunity” is the wrong word to describe the moment; labor has the existential imperative to reform itself, harness the existing energy, and lead a movement.
There is no doubt that Donald Trump—through the use of Executive Orders, executive and judicial appointments, and legislative priorities—will likely usher in an environment that is hostile to labor. However, unlike Ronald Reagan, Trump ran a campaign that provided the ground for labor to reform itself. First, he will be the first president in modern history that ran a campaign that was centered around worker issues. All presidential candidates talk about middle and working class issues, but successful campaigns are rarely centered on improving the lot of workers. Second, Trump’s calls for mass deportations, exclusion of Muslims, dismantling of the regulatory state, limits to access for abortion, and a litany of xenophobic actions and policies, have united large swaths of Americans in opposition. Under these conditions, labor can transform itself from what has increasingly become a membership-based services organization into a movement.
This post is part of a series on Labor in the Trump Years.
From the end of Reconstruction up through the election of 2016, political elites have done a masterful job convincing the white working class that they do not share a common interest with nonwhite workers. They used regional differences to political advantage by convincing Southern and rural voters that Northerners, urbanites, and intellectuals disdain them. The task for labor and the left now is to make sure that the 2016 election is the last time that happens. Rather than demonize those who voted for Trump as bigots, labor should take their economic demands seriously. Labor should seek common cause among all people around the economic issues that animated the vote for change. White voters in Michigan, Ohio, and Wisconsin put Trump in office because he promised to improve their lives. When he doesn’t deliver on his populist promises because his policy agenda is entirely about cutting taxes and freeing corporations from all labor regulation, labor must remind middle class and working class voters of all races and ethnicities that corporate interests are dominating a Trump Administration.
Republicans now have to govern in a way that at least makes a gesture toward the populist campaign that Trump ran. The longstanding Republican strategy of using religion and social issues as wedges to divide the working and middle classes may not work in a Trump Administration. Trump is not beholden to the religious right; for the first time since 1980, the religious right did not get the Republican candidate they wanted. Trump will not be able to make good on, and has already begun backing away from, his most hateful nativist promises to build a wall along the Mexican border and to deport 11 million people because business elites in agriculture, shipping, service work, and manufacturing depend on immigrant labor. He has also begun to back away from the most reckless promises about repealing the Affordable Care Act because too many of his likely voters depend on some of its protections. Unless there is a major attack, Trump cannot use the threat of terrorism, as the George W. Bush administration did, to distract the electorate from serious attention to the declining or stagnant fortunes of the vast majority of Americans. He ran on domestic economic malaise in the regions of the country that haven’t seen the spectacular increases in wealth of the urbanized coasts, and labor should now hold government to account for doing something about it.