Scalia’s Record on Labour Rights as Human Rights – Justice Denied

by | Apr 8, 2016

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About Anne Marie Lofaso

Anne Marie Lofaso is the Arthur B. Hodges Professor of Law at West Virginia University College of Law, specializing in labor law, jurisprudence, and constitutional law. She is the Vice President of the West Virginia Advisory Committee to the United States Commission on Civil Rights. She received her D.Phil. in law from Oxford under the supervision of Sandra Fredman.


Anne Marie Lofaso “Scalia’s Record on Labour Rights as Human Rights – Justice Denied” (OxHRH Blog, 8 April 2016) <> [Date of Access]

During Justice Scalia’s nearly thirty-year term, the Court decided nineteen private-sector labour cases in which the National Labor Relations Board (NLRB) was a party. Three cases concerned whether the Court/NLRB/President had the authority to act, the other sixteen dealt with agency discretion. Scalia was in the majority sixteen times, dissented twice, and split the issues in one case. These statistics alone though, reveal little about Scalia’s human rights record on freedom of association. To discern Scalia’s legacy on this issue, it is more illuminating to review a subset of the agency discretion cases decided by the Court from 1994 and 2002, at the heart of which is a worker’s classification as a statutory employee and, therefore, their entitlement to statutory protections.

In Town & Country Electric, the Court unanimously held that a salt – a worker paid by a union to work at a nonunion shop to legally organise its workers – was an employee under NLRA Section 2(3), thereby rejecting the policy argument that salts could not be employees because they could never be loyal to the employer. Given the breadth of §2(3), which includes all workers unless expressly exempted, it would have been hard for the strict textualist to have found otherwise. Scalia joined the opinion but remained silent.

In four cases, Scalia sided with those asking the Court to ignore the NLRB’s statutory interpretation, thereby narrowing the definition of employee (or broadening an exemption). For example, in Holly Farms, Justice O’Connor, writing an opinion dissenting in pertinent part, would have expanded the “agricultural laborer” exemption to include live haul workers, “chicken catchers, forklift operators, and truck drivers, who collect for slaughter chickens” and transport them to a processing plant. Although the Court unanimously held that the truck drivers were not agricultural labourers, it split 5-4 on the other two categories.  Scalia joined in that dissent, silently.

In an infamous series of two cases, the Court rejected the Board’s definition of the supervisory exemption, under NLRA Section 2(11), which excludes protection from workers using “independent judgment” when they exercise any one of twelve enumerated powers (e.g., assign work, discipline employees, responsibly direct employees) “in the interest of the employer.”  In HCR, Justice Kennedy, writing for the 5-4 Court majority that included a silent Scalia, held that the Board’s attempt to narrow the supervisory exemption by claiming that nurses do not exert power “in the interest of the employer” but rather “in the interest of the patient” was inconsistent with §2(11) because patient care is the employer’s interest.

In response, the Board distinguished between independent judgment that is supervisory in nature, which makes a worker an exempt supervisor, and professional judgment, which does not. In particular, the Board excluded “ordinary professional or technical judgment in directing less-skilled employees to deliver services” from the “independent judgment” definition. In Kentucky River, the Court unanimously agreed that the Board’s interpretation of the ambiguous term “independent judgment” is normally entitled to deference. Justice Scalia, writing for the majority, observed that the Board’s interpretation inserted “a startling categorical exclusion into statutory text that does not suggest its existence.” By striking down the Board’s distinction, the Court punched a gaping hole in the definition of employee, making it difficult for professional workers, who often use professional expertise to direct others, to meet that definition.

On the rights of undocumented workers, Scalia, whilst silent in joining the majority, was vocal during oral argument. In Hoffman Plastic, the majority held that, although under Supreme Court precedent undocumented workers were statutory employees, they were not entitled to backpay when their employers (who illegally hired them) unlawfully fired them for exercising their organisational rights. Scalia infamously remarked that, because an undocumented worker cannot legally work in the U.S. and therefore cannot mitigate the harm caused by his/her employer’s unlawful conduct, a “smart” undocumented worker would simply “sit home”, “eat chocolates”, and collect “back pay”.  Scalia’s view of people who are so impoverished that they risk life or limb to cross the border into the U.S. for the opportunity to work rightly provoked ridicule from labour scholars.

Labour law’s purpose is to promote the practice of collective association among workers. To meet that purpose, the plain language of §2(3)’s employee definition is strikingly broad – an employee means “any employee” unless otherwise exempted. Where Justice Scalia, a committed textualist, could not dismiss such language, he silently joined the majority. But where there was any ambiguity, rather than deferring to the NLRB’s expert judgment, as would normally be proper under principles of administrative law, Scalia tortured the language; in the name of formalism, he read out of the NLRA Congress’s stated purpose – to protect the working class through group association. When justices use word games to thwart that purpose, justice is denied.

Editor’s Note: This is the final post in the OxHRH Blog’s special series reflecting on how the late Justice Scalia’s judicial approach and reasoning influenced rights-based protections across significant areas of the law. You can find the full list of contributors and links to their posts here.

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