The Supreme Court Vacancy and Labor: Sri Srinivasan

Vivian Dong

Vivian Dong is a student at Harvard Law School.

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.

  1. Home Care Association of America v. Weil

Srinivasan authored the opinion that upheld the Department of Labor’s extension of guaranteed overtime and minimum wage protections to nearly 2 million home health care workers.  The Department of Labor had re-interpreted the Fair Labor Standards Act to no longer exempt home care workers hired by third-party staffing agencies.  Citing Long Island Care at Home Ltd.v. Coke, Srinivasan held that the Department of Labor’s re-interpretation of FLSA is a reasonable interpretation of the statute and is neither arbitrary nor capricious.

Beyond his holding, Srinivasan’s reasoning in Home Care may be of interest to readers.  Srinivasan writes that the Department of Labor’s original interpretation of FLSA occurred in a context where home health care workers primarily functioned as “elder sitters.”  The daily work of hospital care workers, who FLSA did not exempt, and home care workers, who FLSA did exempt, thus differed in nature.  Since then, home health care work has “undergone a marked transformation” – individuals who require demanding levels of care increasingly receive care services in their homes instead of in hospitals.  In Home Care, Srinivasan recognizes that workplaces change and that statutes could be re-interpreted by federal agencies in light of such changes.

  1. Weigand v. NLRB

Srinivasan signed onto Judge Edwards’ unanimous opinion in this case, which affirmed an NLRB decision on the grounds that it was supported by the evidence and neither arbitrary nor otherwise erroneous.  The plaintiff, a union member, alleged that his union committed unfair labor practices by failing to remove derisive anti-scab threats on the union’s private Facebook page.  The plaintiff based his claim on his argument that the Facebook page was an extension of the picket line, and case law holds a labor organization responsible for its members’ picket line misconduct unless it disavows the misconduct. The NLRB rejected this argument and dismissed the complaint.

The court first emphasized the “very high” standard of deference the Courts of Appeals gave to administrative adjudications by the NLRB.  The court hence found that the NLRB’s decision was supported by the record and consistent with applicable law.

  1. Ozburn-Hessey Logistics, LLC v. N.L.R.B.

Srinivasan signed onto a per curiam opinion that denied the an employer’s petition for review of an NLRB order finding that the employer committed unfair labor practices when it threatened its employees with loss of job benefits if they unionized.  The NLRB also found that the employer interrogated employees, threatened employees with termination for participating in a strike, and terminated employees active in push to unionize within the company.  The D.C. circuit held that the employer’s expression of anti-union views and its discipline of the employees shortly after the unionization campaign began were enough to state a prima facie case for a violation of Section 8(a)(3) of the NLRA.

  1. Wilson v. Cox

Srinivasan authored this unanimous opinion, which reversed a district court’s grant of summary judgment for an employer against an employee’s age discrimination claim under the ADEA.  The defendant employer fired the 71-year old plaintiff employee, a security guard and resident of the Armed Forces Retirement Home in Washington, D.C., after a new COO took over.  The new COO abolished the resident employee program that the employee was part of. Srinivasan reversed summary judgment because he held that there was a genuine issue of material fact over whether the employer discriminated on the basis of age: according to the plaintiff, the new COO stated to the residents that “you didn’t come here to work, you came here to retire,” and that “[the residents] were not doing their jobs properly, as from time to time they would be found asleep, which was not safe for a government agency.”

Srinivasan held that these two statements constituted “direct evidence of age discrimination”, which entitled the plaintiff to proceed to trial.  He justified this by quoting Hazen Paper Co. v. Biggins: “[I]t is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age.”

  1. Interstate Fire & Cas. Co. v. Wash. Hosp. Ctr. Corp.

Srinivasan, writing for a majority, held that a nurse employed by a staffing agency contracted out to a hospital counted as an employee of the hospital for insurance purposes.  Though this case likely has limited applicability for broader labor issues, Srinivasan’s method for determining “employee” status may still be relevant.  Srinivasan first looks to Black’s Law Dictionary, which defines an employee as a “person who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance.”  Srinivasan’s opinion holds that the nurse is an employee of Washington Hospital under this definition.

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