
Judge Garland has been labeled a “centrist” by many
observers, and his past, albeit limited, rulings on labor and employment
matters seem to support this sentiment. His record does not show a clear pro-employee
or pro-employer bent, with rulings both for and against employers. Of notable
interest, though, are Judge Garland’s apparent views on government agency
power. His past opinions reflect a strong deference to administrative agencies,
many of which – like the NLRB and Equal Employment Opportunity Commission
(“EEOC”) - have been particularly activist in recent years.
For instance, in a 2009 dissenting opinion, Judge Garland stated
that the NLRB is entitled to “considerable deference” in determining whether an
employee engaged in protected, concerted activity under federal labor law. In a
2014 case, Judge Garland upheld a U.S. Department of Labor rule requiring
federal contractors to give preference to disabled individuals when making
hiring and promotion decisions. If appointed to the Supreme Court, this type of
deference could impact future cases involving various administrative actions
that make it easier for employees to unionize, such as the NLRB’s quickie election rules
and the DOL’s persuader rules and overtime rules.
Despite President Obama’s choice of a Judge with a centrist
reputation, support for Judge Garland has generally fallen along party lines
and the Judge could very well face efforts to block or delay his confirmation
hearings during this election year. Given this congressional gridlock, it is
unlikely that Judge Garland’s confirmation process will be smooth. Employers
should nevertheless be aware that his confirmation—or lack thereof—may impact
pending and future labor and employment cases at the Supreme Court.
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