Jottings By An Employer's Lawyer

Wednesday, July 20, 2005

A First Look at Judge John Roberts on Labor and Employment Law Issues

Jordan Barab, an articulate advocate for employees, particularly on safety issues, takes what admittedly is a first, although relatively thorough, take on the views on labor and empoyment matters a Justice Roberts would bring to the Supreme Court if confirmed. Check out last evening's post, John Roberts, at Confined Space. Although based mostly on comments from others rather than examples of opinions he has authored it does give you a flavor of how he is going to be viewed by organized labor.

Mentioned is Roberts representation of Toyota in the Supreme Court case explaining how restrictions on major life activities were to be interpreted under the ADA, but as I mentioned in my post of last night, Now Let the Feeding Begin, it seems unlikely that will be much of a weapon when Toyota Motor Manufacturing v. Williams was a unaminous opinion authored by the now "revered" Justice O'Connor.

Meanwhile over at the Supreme Court Nomination Blog, which is keeping a list of Judge Roberts D.C. Circuit Court opinions, so far the only one appearing under employment law is:
Koszola v. FDIC, 393 F.3d 1294 (D.C. Cir. 2005) [pdf] - Writing for a unanimous panel, Judge Roberts rejected the plaintiff's claim that the FDIC violated the anti-retaliation provisions of the Whistleblower Act by terminating him. The relevant law provides that the government can avoid liability by establishing by "clear and convincing evidence" that it would have taken the same action absent the employee's disclosure. Judge Roberts declined to adopt the Federal Circuit's requirement that courts apply a special test for "clear and convincing evidence" in this context on the grounds that it is a common legal standard with which judges are familiar.
On another issue with labor overtones and mentioned in Barab's post, is Judge Robert's dissent in AFL-CIO v. Chao. It is also summarized on the Supreme Court Nomination Blog:
AFL-CIO v. Chao, 409 F.3d 377 (D.C. Cir. 2005) - Judge Roberts dissented from the majority's holding that the Secretary of Labor exceeded her statutory authority by promulgating certain reporting requirements for labor unions. Judge Roberts highlighted several aspects of the statutory delegation that indicated that Congress had intended to confer especially broad authority on the Secretary, and concluded that the regulations should have been upheld at Chevron Step Two.
Rather than substance, Judge Roberts was more concerned with the proper division of power between the Court and the Department of Labor:
Perhaps the Secretary was wrong in her assessment about what degree of union involvement in the affairs of a trust poses a danger of the trust being used to circumvent or evade reporting requirements, but see Time Warner Entertainment Co. v. FCC, 240 F.3d 1126, 1141 (D.C. Cir. 2001) (FCC’s attribution of influence based on control of 5% of company’s voting shares domination or control test would prove unworkable, and perhaps the majority’s approach is right. That is not the question before the court. The statute plainly delegates the authority to make such policy-laden judgments to the Secretary — the question is what “[s]he may find necessary to prevent the circumvention or evasion of . . . reporting requirements,” 29 U.S.C. § 438 (emphasis added) — and the Secretary has reasonably exercised that authority. I therefore respectfully dissent from Part III of the court’s opinion. [emphasis added]
Obviously much more will be learned about Judge Roberts' views over the coming weeks, stay tuned.

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