On Monday, July 9th, President Donald Trump announced Judge Brett Kavanaugh as his pick to fill the vacant position in the U.S. Supreme Court. While much of the buzz surrounding Trump’s nomination has focused on women’s rights, LGBT issues, immigration and other hot button topics, many employers are wondering about the judge’s overall stance on employment issues.
If Judge Kavanaugh is confirmed by the Senate, he will fill the vacancy left by retiring Justice Anthony Kennedy.
Justice Kennedy was known for having a moderate viewpoint, but in recent years he has voted in favor of employers in several major cases such as Janus v. AFSCME, Council 31; Epic Systems Corporation v. Lewis; and Encino Motorcars, LLC v. Navarro.
According to Charles H. Kaplan, an attorney with Sills Cummis & Gross P.C. in New York City, Judge Kavanaugh extensive experience writing on labor and employment law issues over the course of his 12 years of service on the U.S. Court of Appeals for the District of Columbia Circuit. During his dozen years serving on the federal appellate court, Judge Kavanaugh has shown a tendency to side with business interests when it comes to resolving regulatory issues and employment disputes.
Of Judge Kavanaugh’s history of siding with employers, Kaplan noted, “In general, Judge Kavanaugh has leaned in favor of employers, but he hasn’t hesitated to rule in favor of employees or the National Labor Relations Board (NLRB) where the facts warranted such a decision.” In one such case, he joined his colleagues on the appellate court in reversing a grant of summary judgment for a black employee that claimed his supervisor created a racially hostile workplace. According to Scotusblog, Judge Kavanaugh wrote that “in my view, being called the n-word by a supervisor – as Ayissi-Etoh alleges happened to him – suffices by itself to establish a racially hostile work environment.”
Judge Kavanaugh’s employer-friendly rulings have been seen in a number of labor and employment law cases:
- In Johnson v. Interstate Management Co., LLC, the plaintiff, a hotel cook, claimed that he was unlawfully discharged after making a safety complaint and filing charges with the Equal Employment Opportunity Commission (EEOC). The defendant argued that the cook had a history of undercooking food and engaging in unsanitary practices, and was finally terminated after serving breaded chicken that had plastic wrap under the breading. Kavanaugh and his fellow judges sided with the employer, holding that there is no private right of action for retaliation under the Occupational Safety and Health Act and concluding that the employer had legitimate, non-retaliatory reasons to discharge the worker that weren’t a pretext (or cover-up) for employment discrimination.
- In National Association of Federal Employees v. Vilsack, Judge Kavanaugh 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.
- In the case of Midwest Division-MMC, LLC v. NLRB, a group of employees successfully claimed before the National Labor Relations Board that they should have been allowed to have union representatives present in their interviews with a nursing peer review committee. The D.C. Circuit panel, which included Judge Kavanaugh, refused to enforce the NLRB decision. Judge Kavanaugh wrote a separate concurrence to emphasize that there is no right to union representation in peer review interviews because the interviews are not compulsory or related to discipline.
- Local 58 of the International Brotherhood of Electrical Workers v. NLRB, was another recent decision in which Kavanaugh took a pro employer stance. The IBEW Local (in Detroit) adopted a policy regarding members who wanted to either resign from the union or stop having union dues deducted from their paychecks. Under the policy, members were required to come to the IBEW office in person with a photo ID and a written request to resign/stop checkoff. The NLRB found that this practice was coercive and illegal, and the court joined in enforcing the NLRB’s decision and denying the union’s request for review.
Should he be confirmed as a Supreme Court Justice, based on his previous history of judgements, Judge Kavanaugh may favor employers in future employment law cases. Stay tuned to the Emplicity blog for more updates on labor and employment law as it affects employers in California.
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