How Gorsuch could shape employment law

The Senate on Friday confirmed Judge Neil Gorsuch as the 113th justice of the Supreme Court. The conservative judge of the 10th Circuit Court of Appeals fills the late-Justice Antonin Scalia’s seat.

While many are curious as to what his confirmation will mean, human resources and benefits professionals — along with lawyers and employers generally — particularly are wondering how he will affect future employment and labor cases. A look as his judicial record will help them better understand his approach.

Gorsuch takes a disciplined, cautious approach and rejects expansive views of employment laws and administrative agencies’ authority.

Since joining the Tenth Circuit Court of Appeal, Gorsuch has made notable employment rulings that give insight into how he may rule in these types of cases on the Supreme Court. Gorsuch does not defer to administrative agencies’ view of regulations, or to agencies’ interpretation of federal statutes. He is also not inclined to give labor unions the benefit of the doubt when they want the National Labor Relations Board (NLRB) to act in their favor.

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Neil Gorsuch, Supreme Court nominee for U.S. President Donald Trump, gestures during a Senate Judiciary Committee confirmation hearing in Washington, D.C., U.S., on Tuesday, March 21, 2017. Gorsuch told senators Tuesday he made no promises about how he would rule on cases, and he wasn't asked to do so when Trump nominated him to the nation's highest court. Photographer: Andrew Harrer/Bloomberg

TransAm Trucking, Inc. v. DOL Administrative Review Board (TransAm Trucking, Inc.) illustrates Judge Gorsuch’s approach. A whistleblower sued because he believed his employment was wrongfully terminated. Gorsuch dissented and sharply criticized the majority for allowing the Department of Labor to broadly interpret the federal statute. Rather than agree with his colleagues that the employer fired the whistleblower in violation of federal law, Gorsuch argued that federal law is more limited and that the Department of Labor exceeded its authority broadly interpreting the statute. Gorsuch wrote, “It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”

Gorsuch’s dissent in TransAm Trucking, Inc. indicates skepticism of the Supreme Court’s precedent of “Chevron deference.” In the Chevron case, a majority of the Court deferred to government agencies’ interpretation of federal law. More important to employers, though, is the glimpse Trans Am Trucking provides into Judge Gorsuch’s view of the law involving personnel decisions that the courts’ job is not to decide whether employers’ decisions are wise or kind, but only whether they are illegal.

In cases involving unions and the NLRB, Gorsuch’s decisions demonstrate a willingness to uphold NLRB rulings provided the Board does not overreach. For example, in the 2014 case Teamsters Local Union No. 455 v. NLRB, Gorsuch upheld the Board’s refusal to award union employees back pay following a lockout where the employer had threatened to hire permanent replacements. Gorsuch found the Board’s decision consistent with its precedents and not arbitrary. His approach to NLRB discretion is particularly noteworthy in light of the 2015 NLRB decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, which dramatically broke precedent in changing the joint-employer standard under the National Labor Relations Act.

Next term, the Supreme Court will examine the validity of class and collective action waivers in arbitration agreements under the National Labor Relations Act. Although we cannot predict how Justice Gorsuch would rule, his reluctance to defer to the NLRB and other agencies will likely inform his approach to this and other employment-related questions.

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