EMPLOYMENT IMPLICATIONS OF ELENA KAGAN’S NOMINATION FOR THE U.S. SUPREME COURT

It was big, albeit not entirely unexpected, news several weeks ago when liberal United States Supreme Court Justice John Paul Stevens, 90 — who was appointed to the nation’s highest court by former President Gerald Ford in the wake of Watergate — announced that he would step down from the Court and retire at the end of the current term in the summer of 2010 after approximately 35 years of distinguished service.

President Barack Obama’s nomination a little over one week ago of Elena Kagan, current United States Solicitor General, as Justice Stevens’ successor, was news just as big.

But what labor and HR implications would Kagan’s confirmation to the Court have for employers, both nationwide and in the Appalachian region?

That’s not an easy question to answer, because Kagan has never served on a federal bench, and therefore has less of a track record to evaluate. Still, some tendencies can be gleaned from Kagan’s work as Solicitor General, as evidenced by this piece which highlights the positions she has advocated on behalf of the United States in briefs her office has submitted to the high Court on labor and employment issues during her 14 months in that position:

http://www.employmentlawdaily.com/index.php/2010/05/11/obama-nominates-solicitor-general-elena-kagan-to-supreme-court/

As this well-written piece illustrates, most of her positions in front of the high Court were largely pro-employee. Her pro-employer stance in one of those cases, however, clearly stands out — and not just because it is the only position she seems to have taken in favor of an employer while Solicitor General.

In the City of Ontario v. Quon case, the Supreme Court will have an opportunity to rule on an issue that many in the labor and employment community are watching closely – whether or not an employee has a reasonable expectation of privacy in his or her personal use of an employer-issued communication device. Solicitor General Kagan’s brief to the Court in that case supported the employer’s position that the employee had no reasonable expectation of privacy in the messages sent or received on such a device.

Barring something unexpected in her confirmation hearings, Kagan is widely expected to be confirmed to the high Court sometime in the summer. Because of her relatively bare track record, it will be more interesting than usual to watch how she rules in the first cases the Supreme Court decides once she is confirmed to the bench – especially those which address labor and employment law issues.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
 
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