Welcome to Labor of Law. The track record of Trump's Supreme Court pick—Brett Kavanaugh—skews pro-employer. We've rounded up some early observations and expectations. Plus: the NFL players union sues over the league's anthem strategy. Microsoft defeats class action certification in a gender bias suit, and Donald Trump's personal driver takes his old boss to court. Scroll down for who got the work and notable moves.

I'm Erin Mulvaney in Washington, D.C., covering labor and employment from the Swamp to Silicon Valley. If you have a story idea, feedback or just want to say hi, I'm at [email protected] and on Twitter @erinmulvaney.

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Searching Kavanaugh's Record for Labor Clues

Judge Brett Kavanaugh's opinions—collected here at the new website D.C. Circuit Breaker—show he's a fairly consistent vote for business. Of course, that won't particularly rock the persuasions of the current court, as the retiring Anthony Kennedy wasn't always ruling for the little guy.

Unlike recent nominees to the high court, Kavanaugh would arrive with a substantial experience presiding in labor and employment disputes—particularly the National Labor Relations Board and the Labor Department. The early criticism of Kavanaugh—depending, of course, on your vantage—is that he's bent over backwards for employers. Kavanaugh would get an early test as major workplace LGBT cases are arriving at the court just as Kennedy is punching the clock.

Kavanaugh's nomination was resounding good news for the employment-side. Still, there are caveats and questions about how a Justice Kavanaugh might handle labor and employment issues before the high court.

I reached out this week asking about what questions you'd want to hear asked and answered at Kavanaugh's confirmation hearing and what are some predictions about his would-be appointment. I want to hear more—so shoot me a note! Here's a roundup of some of what I heard:

➤ Fisher Phillips partner Richard Meneghello told me one prediction: “This court will go from a reliably pro-business court to being solidly pro-business. It will be an uphill battle for employees to win many cases, if he gets confirmed. He looks for ways to rule for employers.” Still, Kavanaugh hasn't always ruled for employers. In Ayissi-Etoh v. Fannie Mae, Kavanaugh said the single instance of a racially charged word was enough to constitute a hostile work environment. Yet, in another case, Meneghello said he seemed to swing the other way and “bend over backwards” for the employer in Brady v. Sergeant at Arms, a dispute over the demotion of an employee who grabbed his crotch in front of other workers. Questions for Kavanaugh? “If I were an employer I'd be curious about hearing him articulate the concept of deference to agencies. We found several cases in favor of the union in traditional labor cases. Some he agreed with the NLRB, some he did not.”

➤ Brian Markovitz, an employment attorney at Joseph, Greenwald & Laake, says he would ask Kavanaugh if the Civil Rights Act of 1964 was a proper exercise of the commerce clause. “It was a controversial decision. They were trying to end discrimination but there were roadblocks from private companies to get them to do it. From reading his opinions, he seems to want to bring us back to the 1950s.” Markovitz predicted an even more political Supreme Court—marked by more regular 5-4 rulings. “That's the real travesty of this situation. There was a point in time where the court viewed and based decisions on judicial scholarship and thought. Now, it's almost full politics.”

➤ Mark Shoffner, employment partner at Bell, Nunnally & Martin, wants to hear Kavanaugh explain his thinking in the 2013 case Ayissi-Etoh v. Fannie Mae. Kavanaugh, writing in a concurrence, said a single instance of an employee being called a racially charged word by a supervisor “suffices by itself to establish a racially hostile work environment.” Shoffner told me: “That's an opinion out of the mainstream. I would like to see how he interprets statutes when the statute isn't clear. We see a lot of ambiguity in labor and employment law. I would like to drill down on what tools he uses to interpret vague statutes.”

➤ Pat Lundvall, chair of the litigation practice group at McDonald Carano, didn't predict much change. “The current makeup of the SCOTUS has been protective of employer's rights and stringent in its interpretation of the plain meaning of legislative enactments. I would not expect to see much change, if any at all, with the confirmation of Judge Kavanaugh,” she told me.

➤ Igor Timofeyev, litigation partner at Paul Hastings, who clerked for Kennedy—as did Kavanaugh—said he would expect the new justice to add value to the high court on administrative law matters. “Brett is a very principled jurist. He will apply the applicable statute,” Timofeyev says. He points to Kavanaugh's 2016 decision in Verizon New England v. NLRB. Kavanaugh said the NLRB “misapplied its highly deferential standard for reviewing arbitration decisions. Under that standard, the board should have upheld the arbitration decision in this case.”

➤ Steve Hirschfeld at Hirschfeld Kraemer in San Francisco told me: “There's a myth out there that if you are on the management side, that you are looking for judges who are predisposed for management and business. Our clients just want to know what the rules are and have a good understanding of how a court will apply statutes so that they can act accordingly.” He said some of the issues that might rise before Kavanaugh, such as misclassification battles in the gig economy, do not necessarily have hard liberal-conservative lines.

➤ Ballard Spahr partner Steven Suflas, managing partner of the Denver office, said the D.C. Circuit is tough on the NLRB and always has been. Suflas recalled an argument he had before Kavanaugh—who, as he is known to do, asked a lot of questions and showed he was prepared. One decision, Suflas says, sums up Kavanaugh well. The case was about AT&T Connecticut banning employees from wearing certain union shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. Kavanaugh opened his unanimous majority ruling with this line: “Common sense sometimes matters in resolving legal disputes,” he said in Southern New England Telephone Company v. NLRB.

➤ Jonathan Segal, a Duane Morris partner in Philadelphia, had an interesting take that focuses on the states: “The opinions of Judge Kavanaugh are very 'pro-employer' and clearly will put him, if confirmed, on the far right of the Supreme Court. However, a very pro-employer Supreme Court does not necessarily benefit employers. There is a history of Congress overturning by legislation high court decisions that limit employee rights. While this is unlikely to happen at the federal level now, it very well could happen at state and local levels. It is not an accident that state and local jurisdictions have become more aggressive in protecting employee rights with a conservative presidential administration. An even more conservative Supreme Court may serve to accelerate that trend.”

Cases & Grievances

Within weeks of each other, judges ruled against two efforts for class certification in gender equity suits against Microsoft Corporation and Twitter Inc. The Microsoft ruling, from Seattle federal judge James Robart, was recently unsealed. Read the opinion here. The tech sector has faced scrutiny for perceived imbalances among women and men. The recent cases show challenges plaintiffs face in arguing for class status. The U.S. Supreme Court's 2011 ruling in Walmart v. Dukes played a role in defeating class certification in both cases.

“Of course, we are disappointed with the ruling. It's yet another ruling that is supported by Dukes,” said Jason Lohr of San Francisco's Lohr Ripamonti & Segarich, who represented the workers against Twitter. “Dukes was 1.5 million people. Microsoft was 8,500. Our class is 135 individuals who can't get certified. These rulings are basically saying no class of women in similar circumstances can get certified.”

The judges in the two cases found there wasn't a uniform policy that essentially caused the women to be treated differently. Judge Mary Wiss in San Francisco—who ruled for Twitter on the class dispute—in March granted class certification in a case against Google. The suit focused on a policy that considers previous pay to set salary levels.

➤➤ Meanwhile, thee's a big new grievance that's getting a lot of attention…

The National Football League Players Association filed a grievance this week against the NFL's policy surrounding the national anthem. The union argued that the rule, requiring athletes on the field to stand during the playing of “The Star-Spangled Banner,” was made without consultation of the union. The union contends the rule is inconsistent with the collective bargaining agreement.

DeMaurice Smith, executive director of the NFL Players Association, in March told me in an interview:

“To me, when I see players who are interested in social issues who want to support social issues or protest what they believe are failures in our system and hope that our system can be better, do I believe that right to free speech should be protected? 100 percent. The players spoke with one voice in response to people who had negative things to say about them. In many ways, it reflected the best of what our country stands for. Yes, we can live in a world where people have a difference of opinion and I'm positive that not every player on every team felt the same way about the anthem protest but when they were challenged—on that weekend—every team and every owner took a knee.”

Read my full chat with Smith at this link. We got into a wide-ranging discussion about what's on his plate these days.

Who Got the Work

>>Trump's longtime personal driver, Noel Cintron, sued the Trump organization in New York court for alleged overtime abuses. The law firm Davidoff Hutcher & Citron filed the complaint. The Trump organization said in a statement, according to Reuters: “Mr. Cintron was at all times paid generously and in accordance with the law. Once the facts come out we expect to be fully vindicated in court.” The New York Law Journal has more here.

>> A group of California teachers filed a class action to roll back union fees that were collected in violation of their constitutional rights, one of the first such cases filed following the U.S. Supreme Court's 5-4 decision in Janus v. AFSCME. A team from Clark Hill PLC filed the suit in the U.S. District Court for the Central District of California on behalf of the teachers. Read more here.

>> In-And-Out Burger, represented by Littler Mendelson, lost an appeal to Fifth Circuit, which upheld a National Labor Relations Board decision that found the chain was in violation of labor law for banning employees from wearing pins to show solidarity with a movement to raise the minimum wage. Littler's Bruce Sarchet and Edward Berbarie represented the company. Mischa Kristian Bauermeister argued for the NLRB. My colleague John Council in Texas has the report, and read the opinion here.

>> A Costco employee, who is deaf, was awarded $775,000 for discrimination for the claim that the company did not accommodate the disabled. Pennsylvania attorney Evan Krakower and Chad Levy of the Law Offices of Levy & Levy represented the worker. Costco was represented by Seyfarth Shaw's Uma Chandrasekaran and John Murray and Jay Thornton of GrayRobinson. Read more here.

Notable Moves

→ Mayer Brown hired Maru Ferre for its global mobility and migration practice in Northern California. She left the boutique immigration firm Berry, Appleman & Leiden.

→ Ogletree Deakins hired shareholder Thomas Lidbury, who will lead the firm's e-discovery and records release practice. He joined from the Indianapolis office from Benesch, Friedlander, Coplan & Aronoff.

→ Fisher Phillips announced partner Danielle H. Moore will chair the firm's development committee, which works with marketing departments to lead institutional efforts in branding, marketing and business development.

→ Jackson Lewis hired Sharon Franklin as chief operating officer. She previously served as finance transportation lead at Davis Polk. She spent the majority of her career at PricewaterhouseCoopers.

→ Holland & Knight opened a Philadelphia office with 11 partners and one of counsel from Reed Smith. Leading the new office is executive partner John Martini, who chaired the global executive compensation and employee benefits practice at Reed Smith. Read more here.

Around the Water Cooler

>> Motherhood isn't the culprit for Big Law's gender equity failures, “It's nice he thinks being a mommy is cool, but that attitude isn't helping women's careers. The belief that women prioritize family more than men persists, as Catherine Tinsley and Robin Ely recently wrote in The Harvard Business Review, though 'research simply does not support that ­notion.'” [Law.com]

>> Will the Trump White House renominate Democratic NLRB member Mark Gaston Pearce? “The management community is uniform that Mr. Pearce should not be renominated,” Littler Mendelson shareholder Michael Lotito says. [Bloomberg Law]

>> Since 2012, the number of unpaid internships are falling. Such internships have been criticized for taking advantage of free labor. The U.S. Labor Department has issued new guidance. [WSJ]

>> How Amazon suppressed efforts for its workers to unionize. The company is accused of paying its workers low salaries, and is among the top 20 employers for percentage of workers on food stamps. [The Guardian]

>> Credit Suisse creates a new position focused on combatting sexual harassment. The initiative comes as the financial industry seeks to boost workforce diversity under growing awareness of adverse conditions that have held back women and minorities. [Reuters]

>> The legal profession cannot escape its own #MeToo moment, but it can respond to the voices emerging from the silence by implementing meaningful changes. This is the key lesson learned from a new survey conducted by the Women's Bar Association of Massachusetts. [The American Lawyer]

>> Uber's head of HR resigned this week in the wake of an investigation that claimed she mishandled racial discrimination at the ride-hailing firm. [Reuters]

That's all for this week. Thanks, as always, for reading. Shoot me a note with tips, feedback or story ideas to [email protected]