Friday, February 3, 2017

Supreme Court Nominee Neil Gorsuch: How Might He Impact Labor and Employment Law at the Nation’s Highest Court?

On January 30, President Trump nominated Neil Gorsuch to fill the Supreme Court seat that has been vacant since Antonin Scalia’s sudden passing in February 2016. You may recall that President Obama previously nominated Merrick Garland to fill this seat, but he was never confirmed because Senate Republicans refused to hold a confirmation hearing.  Gorsuch is currently a judge on the U.S. Tenth Circuit Court of Appeals, which has jurisdiction over federal court cases in Colorado, Utah, Oklahoma, New Mexico, Wyoming, and Kansas. He received his undergraduate degree from Columbia University in 1988 and his law degree from Harvard University in 1991. Interestingly, Judge Gorsuch was in the same law school class as President Obama, who also received his undergraduate degree from Columbia.

The similarities between Judge Gorsuch and President Obama appear to end at their education. Judge Gorsuch is known for being a conservative legal scholar and jurist, and he has praised the late Justice Scalia’s strict constructionist judicial approach. Judge Gorsuch’s judicial decisions reflect this philosophy, as he generally has taken pro-employer stances in his labor and employment cases before him.

In a 2016 case, Judge Gorsuch defended an employer’s decision to terminate a truck driver who had violated safety rules and disagreed with the U.S. Department of Labor’s interpretation of what constitutes whistleblower activity. In another 2016 case, he rejected arguments advanced by the National Labor Relations Board (NLRB) in support of a new policy aimed to provide more back pay to certain types of workers. In a 2014 case, Judge Gorsuch upheld a NLRB decision that an employer did not invalidate its lawful lockout by threatening to hire permanent replacements for union employees.

Further, Judge Gorsuch has shown skepticism toward the longstanding view that administrative agencies should receive judicial deference when they are interpreting their own rules and regulations, arguing that such deference is unwarranted and possibly unconstitutional. Instead, Judge Gorsuch believes that courts should independently review all laws and regulations without giving weight to agency interpretations.

Judge Gorsuch’s labor and employment views are particularly relevant given the labor and employment cases the Court will likely hear in the near future. As mentioned in prior posts, the Court has agreed to hear cases involving the validity of class arbitration waivers and whether they violate the National Labor Relations Act. In addition, a key NLRB decision involving joint employer liability is currently pending before a federal appeals court and may reach the Supreme Court. Further, federal courts are weighing in on whether federal employment and higher education discrimination laws encompass LGTBQ protections and the Supreme Court has accepted review of a case involving transgender restroom access. If confirmed, Judge Gorsuch would be called upon to decide these difficult cases with far-reaching implications for employers nationwide.

Only a simple majority is needed for Judge Gorsuch’s confirmation.  Of course, Senate Democrats may decide to filibuster a vote on Judge Gorsuch’s nomination, which would require 60 votes to overcome.  Either way, Judge Gorsuch’s confirmation process should be closely watched these next few months.

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