Gorsuch’s possible impact on employers

March 14, 2017


neil gorsuchShortly after taking office, President Donald Trump nominated a potential successor, Judge Neil M. Gorsuch, to fill the vacant U.S. Supreme Court seat.

bruce sarchet

Bruce Sarchet

Judge Gorsuch currently sits on the U.S. Court of Appeals for the 10th Circuit, in his home city of Denver. He has consistently demonstrated conservative legal reasoning and has promoted his judicial approach, particularly the belief that judges should look backward when interpreting the law, rather than relying on their own moral convictions or considering potential policy consequences.

On the whole, Judge Gorsuch’s written opinions on labor and employment issues do not appear to contain any unpleasant surprises for employers. In a recent dissent, for example, he defended the employer’s decision to terminate a truck driver who had violated protocol, and he criticized the majority’s expansive statutory interpretation in holding otherwise.

Gorsuch’s analysis of labor questions in the unionized workplace also reflects a disciplined approach. In another 2016 dissent, he shot down each argument advanced by the National Labor Relations Board in support of a new policy concerning the calculation of back pay in specific scenarios.

In a 2014 dispute over the appropriate remedy for an unlawful practice during a lockout, Gorsuch sided with the Board and the employer. There, the employer had threatened to hire permanent replacements for union employees during a lockout. The Board found this conduct unlawful and ordered the employer to desist and to post a notice. The union sought back pay as well, but Gorsuch rejected this theory and upheld the Board’s ruling.

These opinions indicate that Gorsuch is willing to support the National Labor Relations Board where appropriate, as long as it does not attempt to overreach.  The question of the Board’s potential overreach could eventually become an issue for the Supreme Court in at least two important areas.

First, the Board recently evaluated the relationship between a staffing company and its customer, another business, and developed a new and expansive definition of what constitutes a “joint employer” for purposes of labor relations.  That decision is currently on appeal, and may ultimately make its way to the Supreme Court.

In addition, the Supreme Court recently granted review in three cases involving class action waivers in arbitration agreements.  This topic was discussed in this column back in July 2016. The question presented is whether an arbitration agreement under which employees are required to waive the right to bring class or collective actions violates the NLRA, or is enforceable under the Federal Arbitration Act. Currently there is a “split in the circuits,” which ultimately should be resolved by the Supreme Court.

A noticeable theme running throughout Gorsuch’s work is his distrust of the power entrusted to administrative entities—whether the NLRB, the Department of Labor, or the Board of Immigration Appeals. Indeed, Gorsuch recently authored a concurring opinion in an immigration case, along with his own majority opinion, to underscore his views on this topic.

In that concurrence, Gorsuch advocated the deference afforded to administrative agency interpretations and regulations (known as “Chevron deference”) is unwarranted and arguably unconstitutional. The opinion covers a lot of ground, but, in short, Gorsuch proposes to eliminate “Chevron” deference and allow courts to independently review all laws and regulations without giving weight to agency interpretations (a standard known as de novo review).

According to Gorsuch, closer review by the courts would alleviate a number of his concerns by reining in executive branch agencies that lack both public accountability and constitutional authority to make or interpret laws.

Moreover, de novo review of agency action could also eliminate the dilemma that arises when citizens (including employers) organize their affairs consistent with an agency interpretation, only to have that agency position change, leaving citizens exposed to liability despite their efforts to comply with the law.

The Senate Judiciary Committee and the full Senate will take up the task of vetting Gorsuch and eventually voting on the nomination.  It is possible that the process could be concluded as early as April of this year.

Bruce Sarchet is an attorney with the firm of Littler Mendelson and represents employers in labor and employment law matters.  You can contact him at [email protected].

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