Monday, July 30, 2018 | 2 a.m.
Editor’s note: Today, the Sun continues its occasional series of guest columns focusing on the nomination of Brett Kavanaugh for the U.S. Supreme Court.
Based on his rulings on the Washington, D.C., Circuit federal court of appeals, Brett Kavanaugh will be highly skeptical of legal protections of workers if he takes a seat on the United States Supreme Court.
This is because his rulings show a willingness to depart from decades of precedent that have formed the basis of the New Deal’s protection for workers. The impact might be felt even more in Nevada, where unions are active and there have recently been some high-profile workplace injuries and accidents.
Kavanaugh hears many of the appeals from federal agencies enforcing laws governing the workplace. Over his 12 years on the court, Kavanaugh has participated in and written many decisions interpreting federal laws regarding collective bargaining, anti-discrimination, minimum wage and overtime law.
Millions of American workers rely on Supreme Court rulings to guarantee the right to organize, to protect the constitutional right to engage in protest, and to be protected from workplace hazards. In several of Kavanaugh’s opinions, he’s run counter to the text and purpose of statutes enacted by Congress.
Two of his opinions involve workplace protections that have been important to working Nevadans for decades.
The first involved a company that had illegally hired undocumented workers and then challenged their ability to vote in a union election. As with some employers who don’t worry about the immigration status of their employees until the employees unionize or ask for higher wages, the employer suddenly questioned immigration status once the workers wanted a union.
Because labor law does not question workers’ immigration status as long as they are “employees,” the D.C. Circuit rejected the employer’s argument. Federal labor law protects the right of all employees to “organize and bargain collectively” and entrusts the National Labor Relations Board to enforce that principle. The NLRB has long taken the position that undocumented immigrant workers are protected because if they were not, employers would have a greater incentive to hire and exploit them.
Kavanaugh dissented from the court’s opinion, arguing that the workers’ immigration status was relevant to their ability to cast votes in a union election, even though Supreme Court precedent since 1984 has clearly been that undocumented workers are employees under the law. The Court in 2002 said employees’ immigration status could prevent them from accessing some remedies that other employees can obtain, but writing them out of the statute requires Congress to change the law, which Congress did not do even after the passage of employer sanctions for hiring undocumented immigrants first passed in 1986. But Kavanaugh’s personal beliefs seem to be the opposite, so senators should question him if there are other precedents from which he would depart as well.
Another case in which Kavanaugh dissented for what seemed to be his personal philosophy toward government regulation involved the death of an employee who worked with orcas at a Florida theme park. The Occupational Safety and Health Administration found that the employer could have and should have taken precautions that might have prevented the trainer’s death. The D.C. court held that OSHA had the authority to issue the citations, but Kavanaugh dissented. He saw OSHA’s regulation of workplaces where employees work with dangerous animals as “paternalistic” and the same as banning fighting in ice hockey, the punt return in football, and regulating “the distance between the mound and home plate in baseball.”
Besides the major differences between those sports and working with dangerous animals, Congress gave OSHA broad discretion to use its expertise to investigate when there were “recognized hazards” (like killer whales) that might lead to severe injury or death. Kavanaugh wrote that such regulation was “protecting workers from themselves.”
In Nevada, where labor organizing has been strong and OSHA has investigated many injuries and deaths on the job, the following questions affecting workplace protection will be especially relevant:
What respect should be given to past Supreme Court cases upholding New Deal protections for workers? What role should administrative agencies play in keeping Americans safe in the workplace?
Nevadans should make sure to watch and follow the confirmation hearings closely, and expect the nominee to answer these questions.
Ruben Garcia is a professor at the UNLV Boyd School of Law and a board member of the American Constitution Society.