EverythingPeople This Week!

Published on Tuesday, July 10, 2018

Judge Kavanaugh Nominated to the Supreme Court – What Does it Mean for Employers?

Author: Anthony Kaylin

On Monday President Trump nominated Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.  Judge Kavanaugh is a Yale undergraduate and law school graduate and had clerked for Justice Kennedy.  Judge Kavanaugh worked for Independent Counsel Kenneth Starr, who led the investigation that ultimately resulted in Clinton’s impeachment. Judge Kavanaugh was a lead author of the Starr Report.   He was then White House Staff Secretary to President George W. Bush from 2003 to 2006, who appointed him to the bench.

Judge Kavanaugh is a pro-business, anti-regulaSupreme Court Exteriortion judge.  He is a sceptic of the famous Chevron doctrine, arising from a 1984 Supreme Court case, which gives judicial deference to administrative actions. Judge Kavanaugh voted 75 times to overrule regulators and would not hesitate to vote to roll back rules and regulations.  For example, Judge Kavanaugh wrote the initial opinion that declared that the Consumer Financial Protection Bureau was “unconstitutionally structured” because it gave too much power to a “single, unaccountable, unchecked” director.  The decision was later overturned by the full DC circuit in a split decision. 

As for labor cases, Judge Kavanaugh will uphold precedent but will not allow for pushing of boundaries.  In one case a group of employees successfully claimed before the National Labor Relations Board (NLRB) that they should have been allowed to have union representatives present in their interviews with a nursing peer review committee. The interviews related to state licensing and were not compulsory.  Enforcing the order would expand Weingarten Rights.  The DC Circuit refused to enforce the NLRB’s order. 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 investigatory or related to discipline, i.e. non-Weingarten type situation.

In another case, after Michigan passed Right to Work, the International Brotherhood of Electrical Workers (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 had found, reasonable enough, that this practice was coercive.  On appeal by the IBEW, Judge Kavanaugh voted that the union’s tactics were oppressive.  The NLRB decision was affirmed.

He also wrote an opinion in 2016 that stated that employers can require workers to waive their right to picket in arbitration agreements.

With respect to religion and individual rights, Judge Kavanaugh wrote a dissenting opinion concerning the Affordable Care Act’s contraception coverage mandate that touched on a number of issues related to religious liberty claims.   He wrote that the mandate “substantially” burdened the religious exercise of the challengers.

As for employee rights cases, Judge Kavanaugh affirmed a lower court ruling for an employer concerning an employee who claimed retaliation when he filed an OSHA complaint as well as three EEO charges.  The employee was a cook who committed numerous cooking safety issues and was finally terminated after he cooked breaded chicken that had plastic wrap under the breading and which had melted on chicken.  Regarding the OSHA retaliation claim, Judge Kavanaugh ruled that there was no private cause of action.  In the EEO retaliation claim, he dismissed the claim stating the employer has a legitimate non-discriminatory reason to terminate the employee.

Yet Judge Kavanaugh is sympathetic to discrimination cases if they are “real.” Judge Kavanaugh wrote a concurrence in a case emphasizing that even one use of the "N" word could be severe enough to create a valid claim for a racially hostile work environment.

Finally, with respect to affirmative action, Judge Kavanaugh, does not appear sympathetic to these efforts, breaking with Justice Kennedy’s previous opinions.  Before he was a judge, he wrote an amicus brief for a case against the University of Hawaii on behalf of the Center for Equal Opportunity, a group that opposes race-based affirmative action in college admissions.  It is likely if another affirmative action case came before the court, affirmative action in a five/four decision would be declared unconstitutional. 

 

Sources: Fortune 7/10/18, Buzzfeed.com 7/9/18, Politico 7/9/18, Constangy Brooks Smith & Prophete LLP 7/6/18

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