Brett Kavanaugh and the Future of Workers Rights

The pending confirmation of Brett Kavanaugh to the US Supreme Court alarms those of us who believe in worker’s rights, and our entire practice of employment law is based on just that. Stephen Danz & Associates, Los Angeles employment attorneys, has looked back over several of his past decisions involving worker’s rights, and the picture is dismal.

In Sea-World of Florida vs Perez, a case in which a worker was killed by a killer whale, the court upheld the right of the worker’s estate to sue, based on violations of workplace safety standards by the park. In a stinging dissent, Kavanaugh said this was just another dangerous sport in which the workers knew the risks. Fortunately, he was just a dissenter and common sense prevailed.

But wait. It gets better (or worse, since he wrote this majority opinion). In Venetian Casino vs. NLRB (the National Labor Relations Board), the court upheld the right of a casino to call the police as an exercise of their First Amendment rights. The reason the casino wanted police intervention was simply that union workers were demonstrating on its private property.

And, in another union-busting case, Agri Processor vs. NLRB,  Kavanaugh supported the company’s refusal to recognize the formation of a union because undocumented migrant workers had participated in the voting for union certification. His opinion held that NLRB protections do not extend to the undocumented migrant workers.

Let’s remain vigilant out there and let Congress know that the almost certain continued erosion of worker’s rights, not only here in California (breadbasket of the nation) but around the country, will be accelerated if his nomination is approved. Expect more Supreme Court battles over forced arbitration and denials of rights to file class-action lawsuits based on these agreements.  While workers in California may be very fortunate to soon have a new law enacted denying the right of employers to require arbitration agreements as a condition of employment, we must not rely on just one bill with only California workers its potential beneficiaries.