Analysis: 3 ways Kavanaugh could transform US labor law

By Jeff Stein / The Washington Post

President Donald Trump’s nominee for the Supreme Court may prove a crucial conservative vote in cases defining protections for gay and lesbian workers, the scope of union organizing, and the rights of workers to take their grievances to court, according to labor law experts.

On Monday night, Trump announced the selection of Brett Kavanaugh, a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit.

The Supreme Court dealt two significant blows to unions in its most recent term, issuing one ruling that will weaken funding for public sector unions and another that lets companies force workers to settle complaints through private arbitration instead of the courts.

Justice Anthony Kennedy, who said late last month that he would step down from the bench, sided with the conservatives in both cases. But experts said the court’s opposition to organized labor’s priorities are likely to intensify if Kavanaugh is confirmed, as business groups will accelerate their efforts to erode the clout of unions under a conservative court.

“This last term was horrendous for workers. If you are to have imagined a nightmare scenario for workers and workers rights, this would be it,” said Benjamin Sachs, a labor law expert at Harvard University. “But in those cases, the ruling justices also planted seeds that could lead to further damage against workers.”

On the right, conservative policy experts expressed optimism that Trump’s nominee would continue pushing the court in the direction Chief Justice John Roberts has steered it in recent years.

“The Supreme Court has shown enthusiasm for respecting the rights of individual workers and going after a constitutionally questionable status quo of forced unionism,” said Akash Chougule, policy director at Americans for Prosperity, a conservative advocacy group tied to the network run by the billionaire Koch brothers. “Where constitutional questions remain, we think that effort will continue.”

An overview of Kavanaugh’s written opinions on labor law by Littler Mendelson P.C., a law firm that represents employers in labor disputes, found that the nominee’s writings “do not reveal any particular leanings that might concern the employer community.” Richard Trumka, president of the AFL-CIO, said Kavanaugh “routinely rules against working families” and denies “employees relief from discrimination in the workplace.”

Here are three areas where Trump’s Supreme Court pick could dramatically change U.S. labor law.

1. The scope of the union

Workers can form a union with a simple majority vote. Under current labor law, the union represents all the workers in the relevant group — whether they voted for the union to be formed or not.

But the Supreme Court’s ruling in Janus v. AFSCME said government workers cannot be forced to pay fees to a union, calling it a violation of their free speech rights. Now, labor groups fear that the court will take one step further and say public sector workers also cannot be represented by a union they did not seek to join. The court could rule that membership requires some sort of declaration from an employee that she wants to be a part of the union, which could reduce the number of workers the union represents.

“It’s the cornerstone of our whole labor system since the New Deal,” said Kate Andrias, a labor law expert at the University of Michigan. “Pulling that apart represents real change – there’s no doubt, whatever side you’re on, that it would be a huge transformation of our labor relations.”

Several cases have already been filed by the National Right to Work Committee that aim to limit unions’ ability to represent all the workers in a given unit, according to Sachs, the Harvard professor. One of those cases could eventually land before the Supreme Court.

2. Employment discrimination against gay people

Kavanaugh may also have to decide whether businesses can discriminate in hiring based on sexual orientation. The courts had long held that a company can reject a job application because someone is gay, bisexual or transgender. But, more recently, some lower courts — including the U.S. Court of Appeals for the 2nd Circuit — have found that LGBTQ people are protected from hiring discrimination.

That at least raises the possibility that the Supreme Court will eventually have to weigh in, with the employment outcomes for millions of people potentially hanging in the balance.

“It’s a momentous question,” said Brishen Rogers, a labor law professor at Temple Law School and visiting scholar at the Roosevelt Institute, a left-leaning think-tank.

Under Kennedy, gay rights activists were optimistic they had an ally. Kennedy wrote the majority opinion in Obergefell v. Hodges, the 2015 case that found that same-sex couples have the right to marry. That ruling suggested that he could support broader employment protections for gay and lesbian workers.

“Most people were pretty optimistic with Kennedy that he’d say lesbian, gay and bisexual people were protected,” Rogers said. “With a more conservative replacement, it’s less likely that would happen.”

In employment discrimination cases, Kavanaugh’s decisions “over the years typically favored the employer,” the review by Littler Mendelson found. The review did not specifically cite a case about discrimination based on sexual orientation.

3. Taking employers to courts instead of arbitration

Organized labor is also worried that a court that includes Trump’s nominee would allow more employers to force their workers to take their complaints through arbitration, a private adjudication, rather than through the public courts.

In its most recent session, the Supreme Court ruled in Epic Systems Corp. v. Lewis that companies can require workers to settle employment disputes through individual arbitration, finding that employees should not always have the ability to bring collective action claims through the courts. The decision, written by Justice Neil Gorsuch, a Trump appointee, could affect more than 25 million workers.

Business groups celebrated the decision, arguing that it will help employers avoid expensive litigation. But liberals and labor advocates fear that the court could further erode workers’ ability to pursue an independent judgment on their grievances. The Supreme Court has already suggested that it will hear one case about forced arbitration.

“It’s a huge concern for us,” said Cathy Ruckelshaus, general counsel at the National Employment Law Project. “It’s keeping people out of courts and unable to get any remedy under the labor and employment statutes.”

Kavanaugh ruled last year against employees’ right to bring a lawsuit under the Occupational Safety and Health Act’s retaliation provision, the Littler Mendelson review said.