United States: Who Is Neil Gorsuch And Where Does He Stand On Labor And Employment Issues?

President Donald Trump has promptly nominated a potential successor—Judge Neil M. Gorsuch—to fill the Supreme Court seat left vacant by Justice Scalia's unexpected death nearly a year ago. Since Scalia's death, the High Court has functioned with only eight members. Judge Gorsuch currently sits on the U.S. Court of Appeals for the Tenth Circuit, in his home city of Denver. He has consistently demonstrated conservative legal reasoning while on the Tenth Circuit and appears a natural choice to succeed Justice Scalia. Indeed, in April 2016, Judge Gorsuch delivered a law school lecture that in many ways eulogized Justice Scalia and promoted his judicial approach, particularly the belief that judges should look backward when interpreting the law, rather than relying on their own moral convictions or considering potential policy consequences.1

Judge Gorsuch's Background

Judge Gorsuch, age 49, received his undergraduate degree from Columbia University, Phi Beta Kappa, in 1988 and his law degree from Harvard Law School, with honors, in 1991. He later earned a doctorate of legal philosophy from Oxford University, where he studied as a Marshall Scholar. He began his legal career as a law clerk for Judge David B. Sentelle in the D.C. Circuit and then clerked for Supreme Court Justices Byron R. White and Anthony M. Kennedy during the 1993-1994 term.

Following his clerkships, Judge Gorsuch worked in private practice for about 10 years, specializing in complex litigation. In 2005, he entered public service as Principal Deputy Associate Director at the Department of Justice. The following year, he was appointed to the Tenth Circuit by President George W. Bush. His circuit court nomination was confirmed unanimously. In recent years, Judge Gorsuch has lectured as a visiting professor at the University of Colorado Law School, teaching courses in antitrust law as well as legal ethics and professionalism.

Positions on Labor & Employment Issues

On the whole, Judge Gorsuch's written opinions on labor and employment issues do not appear to contain any unpleasant surprises for employers. His opinions—which, by and large, are clear and easy to read—have not expressed any new interpretations of existing law that would disadvantage employers. In a recent dissent, for example, he defended the employer's decision to terminate a truck-driver employee who had violated protocol, and he criticized the majority's expansive statutory interpretation in holding otherwise.2

Judge Gorsuch's analysis of traditional labor questions also reflects a disciplined approach. In another 2016 dissent, he shot down each argument advanced by the National Labor Relations Board in support of a new policy concerning the calculation of backpay in specific scenarios.3 While the majority upheld the Board's position, Judge Gorsuch considered the Board's interpretation to exceed the scope of its authority.

In a 2014 dispute over the appropriate remedy for an unlawful practice during a lockout, Judge Gorsuch sided with the Board and the employer.4 There, the employer had threatened to hire permanent replacements for union employees during a lockout. The Board found this conduct unlawful and ordered the employer to desist and to post a notice. The employer promptly complied, but the union suggested that the entire lockout was tainted by the threat and sought backpay. Judge Gorsuch rejected this theory, however, and upheld the Board's ruling.5 These opinions indicate that Judge Gorsuch is willing to support the Board where appropriate, as long as it does not attempt to overreach.6

The question of the Board's potential overreach could eventually become an issue for the Supreme Court. In August 2015, the Board issued a pivotal decision in Browning-Ferris Industries,7 which fundamentally and profoundly changed the joint-employer standard under the National Labor Relations Act (NLRA). Whether an employer is deemed a joint employer has significant repercussions for liability purposes. Judge Gorsuch's position on this issue, therefore, is key, as the Browning-Ferris decision is currently on appeal before the D.C. Circuit, and could wind its way to the High Court. Given his track record, Judge Gorsuch might not be inclined to support the Board's reversal of decades of precedent.

A more immediate issue before the Court this term is the validity of class and collective action waivers in arbitration agreements under the NLRA. The Supreme Court recently agreed to consolidate and review three cases that raise this question.

In 2012, the Board issued a contentious decision in D.R. Horton,8 holding that an arbitration agreement under which employees were required to waive the right to bring class or collective actions violated the NLRA. Since that decision, courts have struggled to reconcile this interpretation of the NLRA with other decisions finding class action waivers legal under the Federal Arbitration Act (FAA). The circuit courts of appeals are split on this issue.9

In two of the cases granted review—Epic Systems Corp. v. Lewis10 and Ernst & Young v. Morris11—the Seventh and Ninth Circuits agreed with the NLRB's position that waivers in mandatory, pre-dispute arbitration agreements restrained employees' rights to engage in concerted activity. The Fifth Circuit, however, held in NLRB v. Murphy Oil USA, Inc.,12 that arbitration agreements must be enforced per their terms under the FAA. The court reasoned that because the NLRA, which was enacted after the FAA, did not contain a congressional mandate to override the FAA, arbitration agreements must be enforced under the FAA.

It is too early to predict how Judge Gorsuch, if confirmed, would come out on this issue, but it is instructive that, as noted above, he has shown reluctance to support possible Board overreach.

Views on Administrative Agencies

Of particular interest to employers, a noticeable theme running throughout Judge Gorsuch's work is his distrust of the power entrusted to administrative entities—whether the NLRB, the Department of Labor, or the Board of Immigration Appeals.13 Indeed, Judge Gorsuch recently authored a concurring opinion in an immigration case, along with his own majority opinion, to underscore his views on this topic.14 In that concurrence, Judge Gorsuch advocates that the deference afforded to administrative agency interpretations and regulations (known as "Chevron deference")15 is unwarranted and arguably unconstitutional. The opinion covers a lot of ground, but, in short, Judge Gorsuch proposes to eliminate Chevron deference and independently review all laws and regulations without giving weight to agency interpretations (a standard known as de novo review).

According to Judge Gorsuch, closer review by the courts would alleviate a number of his concerns by reining in executive branch agencies that lack both public accountability and constitutional authority to make or interpret laws. Moreover, de novo review of agency action could also eliminate the dilemma that arises when citizens (including employers) organize their affairs consistent with an agency interpretation, only to have that agency position change, leaving citizens exposed to liability despite their efforts to comply with the law. If Judge Gorsuch is confirmed and maintains these principles, employers can safely assume he will be critical of agency action.

What's Next?

The Senate Judiciary Committee will now take up the task of vetting Judge Gorsuch by conducting interviews and a hearing. That committee will vote on the nomination, which then moves to the full Senate for debate and a vote. Sixty votes are needed for confirmation, meaning that Republicans will need to garner support from Democrats to confirm Gorsuch. Bearing in mind the time required for this process, as well as the Senate's and the Supreme Court's calendars, it is possible that Judge Gorsuch, if confirmed, could take the bench in time to hear oral arguments later this term, perhaps in April.16

Of course, it is unclear whether enough Senate Democrats will support Judge Gorsuch to overcome a filibuster. Senate Democrats are already promising a fight over the confirmation. Although President Obama nominated Judge Garland to fill the open position in March 2016, Senate Republicans refused to consider him. Senate Democrats may respond by filibustering a vote on Judge Gorsuch's nomination, which many have already threatened to do. Although the Senate under prior Democrat control eliminated the filibuster option for judicial nominees to lower courts, the filibuster is—as of now—on the table for Supreme Court nominees. Whether Senate Republicans will attempt to amend the rules to eliminate the filibuster (a move known as the "nuclear option") remains to be seen. In any event, we will continue to monitor the confirmation proceedings closely.


1 Hon. Neil M. Gorsuch, 2016 Sumner Carnary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. L. Rev. 905 (2016), available at: http://scholarlycommons.law.case.edu/caselrev/vol66/iss4/3.

2 TransAm Trucking, Inc. v. Admin. Review Bd., 833 F.3d 1206, 1215–17 (10th Cir. 2016). In TransAm Trucking, the majority deferred to the Department of Labor's interpretation of the whistleblower provisions of the Surface Transportation Assistance Act. The majority agreed that "operating" a vehicle—in this instance, driving a truck but abandoning the trailer in an unsafe situation, against company policy—could constitute the protected whistleblowing activity of "refusing to operate" due to a safety issue. Judge Gorsuch argued that this interpretation (i.e., that "operating" a vehicle could mean more than "driving" it) was unreasonable and that the court should not enforce terms that Congress did not imagine.

3 N.L.R.B. v. Comm. Health Servs., Inc., 812 F.3d 768, 780–86 (10th Cir. 2016) (addressing the Board's rule about backpay where an employer illegally reduces the hours available to unionized workers).

4 Teamsters Local Union No. 455 v. N.L.R.B., 765 F.3d 1198 (10th Cir. 2014).

5 Id. at 1204–05 (explaining that the Board's reasoning was consistent with its administrative precedents and not arbitrary, as the union contended).

6 See, e.g., Comm. Health Servs., Inc., 812 F.3d at 786 (commenting that the Board's position there stemmed from "a frustration with the current statutory limits on its remedial powers" but that only legislation could resolve the Board's frustration).

7 Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (Aug. 27, 2015).

8 357 NLRB No. 184 (2012).

9 In addition to the Fifth Circuit's NLRB v. Murphy Oil USA, Inc., case in which cert was granted, the Second and Eighth Circuits have also rejected the NLRB's D.R. Horton reasoning and enforced class action waivers in arbitration agreements. Cellular Sales of Mo., L.L.C. v. N.L.R.B., 824 F.3d 772 (8th Cir. 2016); Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013); Sutherland v. Ernst & Young L.L.P., 726 F.3d 290 (2d Cir. 2013); Patterson v. Raymours Furniture Co., Inc., 659 F. App'x 40, (2d Cir. 2016). Three other cases involving this issue are also subject to cert petitions pending before the Supreme Court. See Sean Mccrory and Rob Friedman, Supreme Court Will Review Three Cases Involving the Lawfulness of Class and Collective Action Waivers, Littler ASAP (Jan. 13, 2017).

10 823 F.3d 1147 (7th Cir. 2016), cert. granted, No. 16-285 (Jan. 13, 2017).

11 No. 13-16599 (9th Cir. Aug. 22, 2016), cert. granted, No. 16-300 (Jan. 13, 2017).

12 808 F.3d 1013 (5th Cir. 2015), cert granted, No. 16-307 (Jan. 13, 2017).

13 See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016); N.L.R.B. v. Comm. Health Servs., Inc., 812 F.3d 768 (10th Cir. 2016); Teamsters Local Union No. 455 v. N.L.R.B., 765 F.3d 1198 (10th Cir. 2014); Compass Envt'l, Inc. v. O.S.H.R.C., 663 F.3d 1164 (10th Cir. 2011).

14 Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016).

15 See Chevron, U.S.A., Inc. v. National Res. Def. Council, Inc., 467 U.S. 837 (1985) (describing analysis for agency actions and generally deferring to such actions where a statute is ambiguous and the agency's interpretation is reasonable).

16 New justices traditionally do not vote on cases if they were not present for the oral arguments. Additionally, cases resulting in a tie vote among the sitting eight justices could be re-heard next term.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Michael J. Lotito
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions