Worker Protections

AFJ Action Campaign is tracking the votes of every senator up for reelection in 2020 on Trump’s worst of the worst judges. Each senator who voted to confirm these judges owns the decisions—these decisions are harming people every day. See how your senator voted for some of the worst of the worst judges here.

In Gaffers v. Kelly Services, Sixth Circuit judge Amul Thapar ruled against 1,600 workers who were victims of wage theft by extending the Supreme Court’s decision in Epic Systems, which dealt with arbitration under the NLRA, to claims under the FLSA.

In Harris v. YRC Worldwide, Inc., Seventh Circuit Judge Barrett sided against four Black truck drivers who alleged that their employer, YRC, assigned them to less-desirable urban routes instead of suburban routes, ignoring the seniority rules in their collective bargaining agreement. They further alleged that they were subjected to a “racially hostile environment” at work. Among other things, they reported being called racial slurs by White drivers. Barrett joined a panel decision rejecting the claims that they were assigned to less desirable routes because of their race. Moreover, despite clear precedent that one racial slur is sufficient to allege a hostile workplace, the panel held that “[t]hese statements, individually and collectively, do not amount to the sort of serious or pervasive comments that violate Title VII.”

In Larkin v. Saul, Ninth Circuit Judges Daniel Collins and Lawrence Van Dyke ignored medical notes indicating that Jacqueline Larkin was limited in her ability to work a full work week and upheld a district court’s ruling affirming the denial of Social Security Supplemental Security Income (SSI) benefits. As Judge Marsha Berzon noted in her dissent, “the examining psychologist, said three different times, under three different headings, that Larkin would have problems with attendance, punctuality, and completing a regular workweek.”

In Crozer-Chester Medical Center v. National Labor Relations Board, Third Circuit Judge Stephanos Bibasargued that an employer who refused to provide its employees’ union with relevant documents relating to pensions and healthcare did not violate the National Labor Relations Act (NLRA). Under the NLRA, employers are required to provide unions with documents relevant to the bargaining process. Because of this, the Court upheld an NLRB decision that Crozer, a healthcare network, had violated the NLRA when it would not provide its employees’ union with any portion of a third-party acquisition agreement it had signed—even the portions directly pertaining to the benefits of unionized employees. Bibas, however, vehemently dissented, disparaging the union and claiming there was “nothing it deserved” from Crozer because its requests for information had not been sufficiently specific.

In Kleber v. Care Fusion Corp, Seventh Circuit judges Amy Coney Barrett, Michael Brennan, Michael Scudder, and Amy St. Eve cast the deciding votes to rule that the Age Discrimination in Employment Act does not protect job seekers from policies and practices that have a “disparate impact;” in other words, policies that have the effect of discriminating based on age. They held that the statute did not protect a 58-year-old applicant who was refused an interview for a senior position because the company was only seeking applicants with fewer than seven years’ experience. The company hired a 29-year-old with far less experience.

In West Virginia Coal Workers v. Bell, Fourth Circuit judge Jay Richardson denied black lung benefits to a retired coal miner who developed a permanent respiratory disability. The decision reversed the Department of Labor Benefits Review Board’s decision and reinstated the Administrative Law Judge decision that, the dissent noted, “wholly ignores” evidence of lung impairment.

In Evans v. Muzyn, Sixth Circuit judges Amul Thapar and Joan Larsen dismissed a suit brought by workers against the Tennessee Valley Authority alleging that, in the wake of the 2009 financial crisis, the TVA slashed pension benefits without proper notice and in violation of the plan’s terms. Over a dissent, he held the workers could not even bring the suit because, in his opinion, the cuts “did not cause plaintiffs any harm.”

In Bender v. Champlain Enterprises, Sixth Circuit judge Joan Larsen ruled against an airline employee who was terminated after informing her employer that her supervisor, who oversaw the production of maintenance manuals for pilots, was impeding work in a manner that compromised safety.

In Circus Circus Casinos Inc. v. National Labor Relations Board, D.C. Circuit judge Neomi Rao wrote a decision that vacated an NLRB ruling against a company for threatening an employee for union ties. The decision weakens unionized employees’ rights in favor of the employer.

In In re Schlumberger Technology Corp., Fifth Circuit judge Kyle Duncan was the deciding vote to block a district court from allowing discovery of critical information related to an employer’s violation of the Fair Labor Standards Act (“FLSA”). The lawsuit was brought after the employer failed to classify a number of employees as eligible for overtime pay as required by the FLSA.

In Johnson v. Ohio Department of Public Safety, Sixth Circuit judge Amul Thapar upheld the dismissal of an African-American state trooper’s racial workplace discrimination claim over a dissent, which highlighted how he created too narrow a test for bringing Title VII cases.

In Martin v. Financial Asset Management Systems, Eleventh Circuit judge Britt Grant wrote an opinion, over a dissent, throwing out civil rights claims brought by a woman who was fired two days after she reported race- and sex-based discrimination to her company’s human resources (HR) department. Grant held the former employee could not provide evidence that the company’s CEO knew about discrimination claims, even though the employee had settled similar charges 16 months before she was fired.

In Castor v. AT&T Umbrella Benefit Plan No. 3, Sixth Circuit judges Amul Thapar and Joan Larsen ruled to allow a cable company to deny disability benefits to a sick employee even though the company unlawfully used the same doctor to evaluate — and reject — both the initial claim and the appeal.

In Henderson v. City of Flint, Sixth Circuit judge Joan Larsen dissented from a ruling in favor of an employee whistleblower who brought a retaliation claim against her employer, the City of Flint, after she was unfairly fired for disclosing “unethical conduct” by the mayor, who was inappropriately funneling funds following the Flint water crisis.

In Thompson v. Marietta Education Assoc., Sixth Circuit judge Amul Thapar rejected a constitutional challenge to a law requiring government employees to accept exclusive representation by a public sector union, but he encouraged the Supreme Court to overturn a key precedent to end public sector collective bargaining.

In Simmons v. UBS Financial Services, Fifth Circuit judges Don Willett and Kyle Duncan held that Title VII does not protect nonemployees from retaliation.  James Simmons was employed by a third-party but regularly did business with UBS. After his daughter, an employee of UBS, filed a claim for pregnancy discrimination, UBS froze Simmons out of doing business with them.  Despite the fact that the Supreme Court has held that third parties can sue for retaliation, Willett and Duncan held that does not extend to third party non-employees.

Although not in the majority, in Nall v. BNSF Railway Company, Fifth Circuit judge James Ho dissented from a decision that ruled in favor of an individual with Parkinson’s disease who alleged that he was improperly placed on leave by his employer.

In Card v. Principle Life Insurance, Sixth Circuit judge Joan Larsen dissented from a Sixth Circuit decision overturning a district court’s denial of disability benefits to a long-term care center nurse suffering from leukemia.

In McClellan v. Midwest Machining, Sixth Circuit judge Amul Thapar would have prevented a woman from bringing a pregnancy discrimination lawsuit under Title VII against her employer who fired her after she became pregnant and then “pressured” her into signing a severance agreement that included waiving civil rights claims. Thapar’s position, rejected by a majority of a Sixth Circuit panel, was that she should be denied legal recourse even though she had returned the severance to her employer. 

In Wallace v. GrubHub Holdings, Inc., Seventh Circuit judge Amy Coney Barrett ruled against drivers claiming that GrubHub, in violation of established federal law, failed to pay them overtime they were entitled to.  Despite the fact that transportation workers engaged in “interstate commerce” are exempt from mandatory arbitration agreements, Barrett held the drivers were required to undergo a too often biased arbitration process for any claims.  As the drivers’ attorney noted, “Certainly when Congress enacted the [Federal Arbitration Act], it never foresaw that it would be used to stop drivers for a major national delivery company from challenging their employer’s systematic violation of wage laws.”

In Diamond v. Pennsylvania State Education Association, Third Circuit judge Peter Phipps dissented from a panel decision that held that public-sector unions do not have to pay back fees collected from nonmembers before the Supreme Court overturned a 40 year precedent in Janus v. AFSCME.  The majority, consistent with every other court that had ruled on the issue, held that the union relied in “good faith” on the longstanding Supreme Court precedent.

In Pacific Maritime Association v. NLRB, DC Circuit Judge Neomi Rao, dissenting, would have sided with two shipping companies that effectively modified an employee contract without union consent and improperly disciplined an employee. Had Rao prevailed, her decision would have partially overturned a finding of unfair labor practices by the National Labor Relations Board. In Hurt v. Commerce Energy, Inc. Sixth Circuit Judge Eric Murphy, dissenting, would have sided with an energy corporation that had failed to pay its sale persons overtime pay and minimum wage. A panel of the Sixth Circuit affirmed a jury decision that the door-to-door solicitors were misclassified and were in fact employees entitled to wage protections.

In Rittman v., Inc., Ninth Circuit Judge Daniel Bress argued in dissent that thousands of Amazon delivery drivers who the company allegedly underpaid in violation of federal law had to file individual arbitration claims, and were barred from bringing a class action lawsuit. The two other judges on the panel, who were both George W. Bush appointees, disagreed and upheld a district court ruling that Amazon could not enforce mandatory arbitration language in its contract with drivers because federal law exempts from mandatory arbitration transportation workers “engaged in interstate commerce,” and although the worker himself did not cross state lines, he was part of a distribution chain that did.

In Delta Sandblasting Co., Inc v. NLRB, Ninth Circuit Judge Patrick Bumatay, in dissent, would have overturned the NLRB’s finding of unfair labor practices after a company cut pension contributions for its workers without notifying or bargaining with the union. The majority, which included a George W. bush appointee, upheld the NLRB’s ruling. In Rosales v. Bellagio, Ninth Circuit Judge Patrick Bumatay, in dissent, would have allowed an employer to fire an employee without making a good faith effort to determine whether there was a possible accommodation for his disability, a clear violation of the Americans with Disabilities Act (ADA). The employee, Jorge Rosales, had worked in room service at Bellagio for 18 years and had sustained his injury while on the job.

In Exby-Stolley v. Board of County Commissioners, Weld County, Col., Tenth Circuit judges Allison Eid and Joel Carson would have sided against a woman who was injured while on the job and then terminated after her employer failed to make an accommodation for her injury. Despite a clear showing of disability discrimination, Eid and Carson accused the majority of interpreting the Americans with Disabilities Act as a means of “micromanag[ing] employment decisions.”


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