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How Trump's Judicial Picks Have Changed Employment Law

Law360 - Danielle Nichole Smith

President Donald Trump is transforming the courts, winning his 200th judicial confirmation Wednesday. Here, we look at the impact those judges have had on employment law, from employer-friendly rulings on arbitration to the recent landmark U.S. Supreme Court win for gay and transgender workers.

So far, Trump has appointed 53 judges to the U.S. Courts of Appeals, giving the Second, Third and Eleventh circuits majorities of Republican appointees. He's also cemented a conservative majority on the U.S. Supreme Court with his appointments of Justices Neil Gorsuch and Brett Kavanaugh, in addition to the many positions he's filled at the district level.

Already, those judges have helped shape employment law. Justice Gorsuch, for example, wrote the majority opinions for the high court when it handed a win to employers on mandatory class action waivers and a victory to LGBTQ workers on Title VII protections.

Outten & Golden LLP's Chauniqua D. Young said those two decisions, taken together, reveal some of the fault lines among the justices when it comes to the "power dynamic between workers and employers."

"While there is some kind of commonality among the justices regarding the rights of individuals to be free from discrimination, I think it does represent a fundamental disagreement over the power that workers and employers have in an employment context," Young said.

Arbitration

One area of employment law affected by Trump's judicial appointees has been arbitration. In May 2018, Justice Gorsuch wrote the 5-4 ruling that cleared the way for employers nationwide to require their workers to give up the right to bring class action lawsuits in Epic Systems v. Lewis  and two related cases.

The high court said including class waivers in arbitration agreements that workers have to sign as a condition of employment doesn't run afoul of the National Labor Relations Act.

Young said she was "surprised that it wasn't more clear to the court that prohibiting workers from pursuing their claims in a group action directly implicates their protected concerted activity within the meaning of the National Labor Relations Act."

"It just represents a different philosophy, and it's not surprising that the recent Trump appointees would have that philosophy," Young said.

The issue of arbitration returned to the Supreme Court in Lamps Plus v. Frank Varela , and the high court dealt workers another blow when it held in April 2019 that they couldn't invoke class arbitration unless their arbitration agreements explicitly called for it.

Justices Gorsuch and Kavanaugh joined their fellow conservatives in the 5-4 majority.

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