Supreme Court Nominee Kavanaugh Likely to Resemble Predecessor in Approach to Employment, Labor Cases

July 13, 2018

The nomination of Brett Kavanaugh to the U.S. Supreme Court signals little change in direction for the high court on HR policy issues, with some good news on the critical issue of joint employer liability.

Joint employer and successor employer: Judge Kavanaugh expressed support for the “direct and immediate control” approach to joint employer status in a dissent in a 2017 D.C. Circuit case (NLRB v. CNN).  Kavanaugh further argued that the majority had incorrectly held that CNN was the “successor employer” of around 100 workers it hired as in-house technicians after previously utilizing the workers on an independent contractor basis.

Union activity: “Common sense sometimes matters in solving legal disputes,” Kavanaugh wrote in one of a number of opinions he issued overturning Obama-era NLRB decisions.  He wrote the majority opinion in a 2016 case in which he sided with the employer in a dispute over picketing, ruling that the NLRB acted unreasonably when it ruled against the employer who had ordered employees to stop displaying pro-union signs in their vehicles, as per a collective bargaining agreement that prohibited picketing.  Kavanaugh found that the car displays could be construed as a form of picketing and thus were subject to the agreed upon prohibition.  In a similar case he rejected the NLRB's contention that an employer violated the law when it barred employees from wearing shirts that said "inmate" and "prisoner.”

Undocumented workers: Kavanaugh sided with an employer in a 2008 case (Agri Processor v. NLRB) in which an employer refused to bargain with the United Food and Commercial Workers after its employees voted to join the union.  Dissenting from the majority, he argued that because the workers were undocumented immigrants, they could not be considered employees under the NLRA, and thus the union election results were tainted.

Outlook: One area of uncertainty is Kavanaugh’s approach to discrimination issues, such as LGBTQ rights and affirmative action, where Justice Kennedy was often a swing vote.  Regarding LGBTQ rights, the court is likely to eventually consider the issue of whether Title VII protections against discrimination on the basis of sex include sexual orientation and gender identity.