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).

None of these cases are Chevron statutory interpretation cases, the target of some judicial conservatives’ ire, so it is unclear if Judge Pryor is equally inclined to side with the NLRB where statutory interpretation is at issue instead of fact-finding, or where there is no legal necessity of agency deference.  Writing for the panel in Crew One Productions, Inc. v. NLRB, Judge Pryor overturned the board’s determination that local stagehands working for a referral service were employees, instead finding them to be independent contractors.  See 811 F.3d 1305 (11th Cir. 2016).  Judge Pryor noted that while the Board’s determinations with respect to questions of fact are conclusive if supported by substantial evidence, the question of whether workers are employees or independent contractors “depends on the application of law to facts,” and “the legal standard to be applied is ultimately for the courts to decide and enforce.”  Id. at 1310 (quoting NLRB v. Associated Diamond Cabs, Inc., 702 F.2d 912, 919 (11th Cir. 1983).  Judge Pryor proceeded to find that the stagehands were independent contractors, not employees, after considering the ten factors relevant to the inquiry from the Restatement (Second) of Agency––in particular, the extent of control exercised over the workers.  Id. at 1310–11.

On the other side, Judge Pryor dissented from the panel’s finding in Lamonica v. Safe Hurricane Shutters, Inc. that a defendant, a director of the co-defendant company, amounted to a liable employer.  See 711 F.3d 1299, 1320 (11th Cir. 2013).  Judge Pryor disagreed that the director had the requisite operational control necessary for liability under FLSA.  In the same case, Judge Pryor concurred with the majority opinion holding that undocumented immigrants are employees under FLSA and could therefore bring suit and win backpay on FLSA claims, despite the Supreme Court’s holding in Hoffman Plastic Compounds.

As some publications have already covered, Judge Pryor joined the opinion in Glenn v. Brumby, which held that employment discrimination against transgender individuals amounted to sex-based discrimination under the equal protection clause.  See 663 F.3d 1312 (11th Cir. 2011).  Judge Rosemary Barkett, who authored the opinion, cited Price Waterhouse v. Hopkins’ holding that gender stereotyping is a form of sex-based discrimination in support of her conclusion, writing that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”  Glenn, 663 F.3d at 1316.