Justice Gorsuch Likely To Have Significant Impact On Labor And Employment Cases Before The U.S. Supreme Court

Seyfarth Synopsis: With Justice Neil Gorsuch joining the Supreme Court in April, and the apparent re-emergence of a 5-4 split, we expect to see the Court issue more expansive opinions and be less reticent to grant certiorari. The addition of Justice Neil Gorsuch is likely to have particular impact in the field of labor and employment law.

Since Justice Antonin Scalia's death in February 2016, the lack of a ninth justice on the U.S. Supreme Court left the Court without a discernible majority of liberal or conservative justices. The four-four split between more liberal and more conservative justices led to two outcomes: first, some opinions contained narrower holdings than they otherwise may have in order to command a majority. Second, it appears the remaining eight justices voted more defensively on certiorari, as the outcome of cases may have been more difficult to predict. The addition of Gorsuch could impact a number of labor and employment cases currently pending or awaiting certiorari from the Court.

The most important employment law case on the Court's docket is Epic Systems Corp. v. Lewis, No. 16-285. In Epic, the Seventh Circuit held that the inclusion of a class action waiver in an arbitration agreement violated the National Labor Relations Act, finding that participating in a class is a "concerted activity" protected by the NLRA. This holding is directly contrary to other circuit courts, which have found that class action waivers are enforceable under the Federal Arbitration Act.

In deciding Epic, the Court may provide further guidance on its approach to statutory construction, and make a key ruling affecting employers' ability to channel disputes with employees to arbitration on an individualized basis. Although it is always difficult to prognosticate Supreme Court decisions, many observers believe that Justice Gorsuch is likely to favor arbitrability of disputes.

With other employment cases queueing up for Supreme Court review, Justice Gorsuch's addition to the Court is likely to have an important impact on how cases are decided. Gorsuch has taken a strictly textualist approach to resolving matters of statutory construction, and has called into question Chevron deference. See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch, J., concurring) (describing Chevron deference as an "abdication of the judicial duty"). For example, in TransAm Trucking, Inc. v. Administrative Review Board, 833 F.3d 1206...