Christine Coleman

Christine S. Coleman Associate

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What Can Employers Expect from Supreme Court Nominee Neil Gorsuch if He Is Confirmed?

President Donald Trump wasted no time in nominating Neil Gorsuch to fill the Supreme Court vacancy left after the death of Justice Antonin Scalia. Former President George W. Bush appointed Judge Gorsuch to the 10th Circuit Court of Appeals in 2006. Prior to his federal appointment, Gorsuch attended Harvard Law School, and then clerked for a judge on the D.C. Circuit followed by Supreme Court Justices Bryon White and Anthony Kennedy. Gorsuch was in private practice for about ten years before he served as principal assistant to the deputy attorney general in the Department of Justice.

Confirmation proceedings promise to be heated after Republicans declined to hold confirmation proceedings for President Obama’s nominee (Merrick Garland) to fill the same spot. There is much discussion of a filibuster by Democrats, followed by speculation over whether Republicans would choose to exercise the so-called “nuclear option” to prevent the potential filibuster.

While many controversial issues are sure to arise over the next several years, employers may be wondering about Gorsuch’s potential impact on businesses and labor. Based on what we have learned about his prior decisions, Gorsuch’s viewpoints tend to be conservative and likely will align, more often than not, with those of business owners. For example, Gorsuch has gone on record in favor of arbitration to resolve consumer disputes with businesses and has been critical of class actions by consumers. In addition, Gorsuch may help pave the way to reducing the power of regulatory agencies by calling into question the “Chevron deference” doctrine, wherein courts defer to executive agencies on their rules.

In particular, in a recent labor dissent, Gorsuch stated he would not defer to the NLRB without a “rational explanation” as to how the NLRB determined backpay calculations where an employer reduced employee hours, since the approach used by the NLRB in other situations differed. See NLRB v. Cmty. Health Servs., 812 F.3d 768, 780 (10th Cir. 2016). During his time on the bench, however, Gorsuch has issued a total of only three opinions involving the NLRB (two favored the employer and one favored the union). Although he has not established any certain pattern when it comes to labor cases, his confirmation could allow the Supreme Court to reconsider the issue of whether certain union dues violate the First Amendment, an issue that was left unresolved after the death of Justice Scalia. If Gorsuch aligns with other conservative Justices, such union dues may soon be prohibited.

When it comes to Gorsuch’s opinions on employment discrimination matters, again, employers may have cause for optimism as his track record favors employers nine to three. Further, Gorsuch has strongly supported the exercise of religious liberties, but whether such support favors employers or employees moving forward remains to be seen and will depend heavily on the particular facts of the case pending before the Court.

Like many other Americans, we will be watching closely the confirmation proceedings, and will update this blog accordingly.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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