Monday, March 21, 2022

Ketanji Brown Jackson and Labor and Employment Law

President Biden nominated Judge Ketanji Brown Jackson to the Supreme Court, and the Senate hearings are set to begin today. She has only been on the D.C. Circuit for about 8-9 months, so she does not have a huge appellate record to pull from. She did, however, recently author the opinion in AFL-CIO v. Federal Labor Relations Authority (FLRA)

This was really more of an admin law decision, but it dealt with a labor issue. Specifically, the Federal Service Labor-Management Relations Statute requires federal employers to engage in collective bargaining with their employees' representatives when management initiates changes to the terms and conditions of employment. The change, however, must "have more than a de minimis effect on such working conditions."

The FLRA adopted a new standard, where "the duty to bargain is triggered only if a workplace change has 'a substantial impact on a condition of employment.'" Judge Jackson for a three-judge panel wasn't having it:

[W]e hold that the FLRA’s decision to abandon its de minimis exception in favor of a substantial-impact threshold was not sufficiently reasoned, and thus is arbitrary and capricious in violation of section 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). 

I'd generally describe the decision as skeptical of agency rule-shifting, and a favorable outcome for labor. That said, I'd also caution about reading too much into a single decision. 

For a deeper dive on Judge Jackson's labor and employment law history, including her substantial time as a trial court judge, check out Judge Ketanji Brown Jackson’s Labor Decisions on On Labor. 

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