News & Commentary

July 10, 2018

Ross Evans

Ross Evans is a student at Harvard Law School and a member of the Labor and Employment Lab.

Yesterday, President Trump announced that he would be nominating Judge Brett Kavanaugh, currently of the D.C. Circuit Court of Appeals, to replace the retiring Justice Anthony Kennedy on the U.S. Supreme Court.  What could this mean for The Supreme Court’s labor- and employment-law jurisprudence?  On June 28, Edith Roberts of ScotusBlog published a profile on Judge Kavanaugh that included the following excerpt:

In labor and employment law cases . . . Kavanaugh’s rulings have tended to favor employers. In 2016, in Verizon New England v. NLRB, Kavanaugh held that the NLRB had improperly overturned an arbitration decision when it found that a “union’s waiver of its members’ right to picket did not waive their right to visibly display pro-union signs in cars on Verizon property.” In National Association of Federal Employees v. Vilsack, in 2012, he dissented from an opinion holding that a random drug-testing program for government employees who work in residential Job Corps centers required a showing of individualized suspicion under the Fourth Amendment. Partial dissents from panel rulings upholding NLRB findings of unfair labor practices or discriminatory hiring include Midwest Division MMC v. NLRB (2017) and NLRB v. CNN America (2017).

Jeff Stein of The Washington Post reports that the attorneys general of ten states and Washington D.C. are investigating fast-food franchises for their pervasive use of “no-poaching” clauses in employment contracts.  Indeed, according to Princeton economists Alan B. Krueger and Orley Ashenfelter, fifty-eight percent of major franchisors’ contracts include these clauses, which prevent employees from being hired to work at other store locations of the same chain–thus suppressing employees’ bargaining power and wages.  In March, Senators Elizabeth Warren and Cory Booker introduced legislation outlawing no-poaching clauses, but the bill has failed to gain traction in the GOP-controlled Congress.

President Trump’s long-time personal chauffeur, Noel Cintron, is suing The Trump Organization for 3,300 hours of unpaid overtime.  Per Reuters, Cintron’s complaint indicated that his “unpaid overtime alone totatled more than $178,000 . . . and could have been higher but for a statute of limitations.”  Further, Cintron alleges that he drove for President Trump and his various businesses for more than twenty-five years, but had not received a “meaningful” raise in the past twelve years.

Yesterday, The New Yorker, a magazine owned by Condé Nast, agreed to voluntarily recognize the unionization of its non-managerial editorial staffers, a group that includes full- and part-time “reporters, fact checkers, designers, and social media strategists.”  The Wall Street Journal reports that this new collective bargaining unit is called the New Yorker Union and will be part of the NewsGuild-CWA national union.


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