Anthony Kennedy on Jobs

Supreme Court Justice (nominated by Pres. Reagan 1988)


No back pay to illegal alien fired for union organizing.

Justice Kennedy joined the Court's decision on Hoffman Plastic v. NLRB on Mar 27, 2002:

Petitioner Hoffman Plastic Compounds, Inc. formulates chemicals for household products. In May 1988, Hoffman hired Jose Castro. Castro presented documents that appeared to verify his authorization to work in the US. In Dec. 1988, the AFL-CIO began a union-organizing campaign at Hoffman. Castro and several other employees supported the organizing campaign. In Jan. 1989, Hoffman laid off Castro and other employees engaged in these organizing activities.

HELD: By Rehnquist, joined by O'Connor, Scalia, Kennedy, Thomas

Hoffman Plastic Compounds, Inc. v. NLRB (National Labor Relations Board) denied an award of back pay to an undocumented worker who had been laid-off for his part in a union organizing drive. Lack of authority to award backpay does not mean that the employer gets off scot-free. The NRLB has already imposed sanctions, which include orders that Hoffman cease & desist its violations of union organizing rules, and that it conspicuously post a notice to employees setting forth their rights to unionize, and detailing Hoffman's prior unfair practices.

DISSENT: By Breyer, joined by Stevens, Souter, Ginsburg

I cannot agree that the backpay award before us "runs counter to" national immigration policy. The NLRB's limited backpay order will not interfere with the implementation of immigration policy. Rather, it reasonably helps to deter unlawful activity that BOTH labor laws AND immigration laws seek to prevent. Consequently, the order for backpay should be lawful. The Court does not deny that the employer in this case dismissed an employee for trying to organize a union--a crude & obvious violation of NRLB's labor laws. Where in the immigration laws can the Court find a "policy" that might warrant taking from NLRB this critically important power?
Source: Supreme Court case 02-HOFFMAN argued on Jan 15, 2002

Public agencies can make unilateral rules for comp time.

Justice Kennedy joined the Court's decision on CHRISTENSEN v. HARRIS COUNTY on May 1, 2000:

The Fair Labor Standards Act of 1938 (FLSA) permits States and their political subdivisions to compensate their employees for overtime work by granting them compensatory time in lieu of cash payment. If the employees do not use their accumulated compensatory time, the employer must pay cash compensation under certain circumstances. Fearing the consequences of having to pay for accrued compensatory time, Harris County adopted a policy requiring its employees to schedule time off in order to reduce the amount of accrued time. Petitioner Christensen sued, claiming that the FLSA does not permit an employer to compel an employee to use compensatory time in the absence of an agreement.


(Thomas, joined by Rehnquist, O’Connor, Kennedy, Souter, and in part by Scalia)
Nothing in the FLSA or its implementing regulations prohibits a public employer from compelling the use of compensatory time. [Government agencies can require their employees to take extra time off instead of seeking overtime pay. The justices voted 6-3 that public agencies can control when compensatory time is used, unless there is a pre-existing labor agreement.]


(Stevens, joined by Ginsburg and Breyer)
In my judgment, the fact that no employer may lawfully make any use of “comp time” without a prior agreement with the affected employees is of critical importance. Because employees’ consent is a condition without which the employer cannot qualify for the exception from the general rule, it seems clear to me that their agreement must encompass the way in which the compensatory time may be used.

Employers retain the ability to “cash out” of accrued leave at any time. That simple step is, after all, the method that the Department of Labor years ago suggested the county should pursue here, and that would achieve precisely the outcome the county has all along claimed it wants. I respectfully dissent.

Source: Supreme Court case 98-1167 argued on Feb 23, 2000

Other Justices on Jobs: Anthony Kennedy on other issues:
Samuel Alito(since 2006)
Stephen Breyer(since 1994)
Ruth Bader Ginsburg(since 1993)
Elena Kagan(since 2010)
Anthony Kennedy(since 1988)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Sep 21, 2020