US Supreme Court in Washington DC.In this final post in a three-part series on what employers can expect from the new Trump administration, we consider possible Supreme Court nominees and future rulings affecting labor and employment law.

Judicial Appointments

President Trump’s election injects uncertainty into the Supreme Court’s makeup and future rulings, including employment-related cases. Because the Senate did not hold confirmation hearings on President Obama’s nominee, Merrick Garland, President Trump gets to nominate the new justice. In September, Mr. Trump released a list of 21 potential nominees, including Judge William Pryor of the Eleventh Circuit. Any nominee from this list would likely tilt the Court in a conservative direction. Considering the advanced age of several other members of the Court—particularly Justices Ginsburg, Kennedy, and Breyer (ranging in age from 83 to 78)—it is likely that President Trump will have at least one additional nomination.

The elections left the Republicans with a narrow 52-48 majority in the Senate, which will affect the debate over the coming Supreme Court nomination. The Senate rules still allow for a filibuster of a judicial nomination, which could prevent a vote on the nominee unless 60 senators vote in favor of proceeding. Republican control of the chamber significantly enhances the prospects for approval of the President-elect’s preferred nominee.

A Trump appointee would immediately affect the Court’s decisions in a number of significant labor and employment cases in the upcoming term, including:

  • Enforceability of Class Action Waivers

Epic Systems Corporation v. Lewis (16-285), Ernst & Young LLP v. Morris (16-300); National Labor Relations Board v. Murphy Oil USA, Inc. (16-3070), and Patterson v. Raymours Furniture Company, Inc. (16-388). These consolidated cases present a common question: are class action waivers contained in mandatory arbitration provisions enforceable under the Federal Arbitration Act and National Labor Relations Act? The Ninth and Seventh Circuits have held that mandatory class action waivers violated the NLRA; the Second, Fifth, and Eighth Circuits have held them to be lawful.

  •  The Validity of Some NLRB Decisions

National National Labor Relations Board v. SW General, Inc. (15-1251). In this case, the Court will review the D.C. Circuit’s ruling that Lafe Solomon, the former Acting General Counsel of the National Labor Relations Board, violated the Federal Vacancies Reform Act when he continued serving as Acting General Counsel after President Obama nominated him to a full term as General Counsel. If the Court agrees that Solomon was ineligible to continue as Acting General Counsel, actions taken after his nomination could be invalidated. Oral arguments were held in this case on November 7, 2016.

  •  Review of EEOC Enforcement Subpoenas

McLane Company v. Equal Employment Opportunity Commission (15-1248). This case asks the Court to resolve a circuit split on the proper standard of review applied to a district court decision to quash or enforce an EEOC subpoena. The Ninth Circuit has used a de novo standard of review, while eight circuits have held that the district court decision should be reviewed with deference.

  •  Compulsory Union Fees:

Serna v. Transport Workers Union of America (16-484). Here the Court will consider whether a union has the right to collect compulsory fees from represented employees who are non-members, where the employees are subject to the Railway Labor Act. The Fifth Circuit held that a union could, under its agreement, collect fees from those non-member employees.

 In addition to his influence over the direction of the Supreme Court, President Trump will have the opportunity to reshape the federal judiciary by nominating judges for the nearly 100 empty seats in federal district and appellate courts.

There is still a lot of uncertainty about what’s to come once President Trump takes office, finalizes his Cabinet and names a Supreme Court candidate, so continue to follow our Labor & Employment Insights blog for the latest developments. And if you have specific concerns or questions, please contact one of the attorneys in Bradley’s Labor and Employment Practice.