Employee Benefits News examines legal developments that impact the employee benefits and executive compensation employers provide, including federal and state legislation, rules from federal...
President Donald Trump ’s pick to be the next justice on the U.S. Supreme Court, Judge Brett Kavanaugh , has a strong history of siding with business in employment, labor, and benefits cases.
Trump named Kavanaugh, 53, as his official nominee July 9 to fill the seat of longtime Supreme Court swing vote Justice Anthony Kennedy . Kennedy, 81, announced his retirement from the court on the last day of the term June 27.
Kavanaugh currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, commonly known as the second-highest court, and awaits Senate approval of his nomination.
Before becoming a federal judge, Kavanaugh was a staff secretary in the President George W. Bush White House. It took him three years to be confirmed to the D.C. Circuit, after Bush nominated him. He clerked for Kennedy, who later swore him in as a judge. Kavanaugh is a Yale Law School graduate. The addition of Kavanaugh to the court would likely result in a pro-business lean, if his record is any indication.
Kavanaugh, in a 2017 partial dissent, argued that a two-judge panel majority of the D.C. Circuit incorrectly held that CNN was the “successor employer” of about 100 workers it hired from a technical services company it cut ties with. CNN didn’t establish itself as the successor employer when it terminated its contract with the company and didn’t bargain with the workers’ union, Kavanaugh said. He concurred, however, with the majority’s opinion that the board had incorrectly analyzed its joint employer rule, and CNN and the technical services company weren’t joint employers of the workers.
In 2016, Kavanaugh wrote for the majority in a case overruling a pro-union National Labor Relations Board decision. The D.C. Circuit held the NLRB acted unreasonably when it ruled against Verizon New England Inc., which had ordered employees to stop displaying pro-union signs in their vehicles. The displays were a form of “picketing,” Kavanaugh said, which was prohibited by the collective bargaining agreement between the union and Verizon.
Kavanaugh also sided with U.S. Airways in 2013 when he joined an opinion limiting a retired worker’s access to court on his challenge to the termination of his disability benefits. The court ruled that the pilot’s disability benefits action was subject to the Railway Labor Act’s arbitration requirements and couldn’t be heard in federal court.
Kavanaugh has taken a somewhat restrictive view toward immigration in the few such cases he’s heard while on the D.C. Circuit.
In 2008, he dissented from a ruling that undocumented workers are “employees” who can form and join a union under the National Labor Relations Act. Kavanaugh also dissented from a 2014 decision that companies can sponsor immigrants for L-1B “specialized knowledge” visas if those workers have a particular “cultural knowledge.” The idea that cultural knowledge supports a special work visa supports the stereotypical suggestion that U.S. workers would never be able to learn the skills needed to perform the job, he said.
—Carmen Castro-Pagan, Laura D. Francis, and Porter Wells contributed to this report.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)