HOW TRUMP JUDGES ARE WEAKENING

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 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.

 


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